Appeal from Lavaca County. The indictment contains two counts. The substance of the first is, that appellant was the secretary of the city of Hallettsville, and was also the superintendent of the waterworks and electric lights of said city, and as such superintendent was charged with the collection of money belonging to said city, and as such officer, and by virtue of said office and being superintendent of said waterworks and electric lights, there came into his possession the sum of $200, the property of the city, and that defendant did secrete for the purpose of converting, and did convert, the sum to his own use and benefit. This count is drawn under Penal Code, article 786, and does not allege that the city was incorporated. This is not necessary. Price v. The State, 41 Tex. 215. Nor does it set out (plead) the ordinance creating appellant secretary and superintendent of waterworks and electric lights of said city. This is not required, but is a matter of proof. The second count is drawn under Penal Code, article 103, and it alleges that the city was incorporated. If the amount embezzled is $20 or over, the punishment is the same under both counts. The second count is based upon article 103. This count alleges the money to be the property of the city; that the
money came into his possession by virtue of his office and agency; that the appellant converted to his own use (fraudulently) the money, etc. These allegations were in proper form, and the count is sufficient. Were these allegations proved on the trial? They were, clearly. Appellant was appointed superintendent of the waterworks and electric lights by ordinance of the city. This ordinance was introduced in evidence over the objections of defendant. In this there was no error. Appellant requested the court to instruct the jury to the effect, that to convict they must find that appellant "fraudulently converted the money to his own use," etc. Such an instruction had very clearly been submitted to the jury in the main charge, and should not have been repeated. Appellant complains because the court failed and refused to submit to the jury the question as to whether a less amount than $20 was or was not, at the same time, converted by appellant, and hence a misdemeanor. All the circumstances tend to present a felony and nothing less, and the court did right in submitting no other offense to the consideration of the jury.
The judgment is affirmed.
Affirmed.
Judges all present and concurring.