Samuel R. Peacock v. The State, 36 Tex. 647

Ogden, J. The indictment in this case is fatally defective in many respects. It fails to state with any clearness or certainty, the kind or character of fines of which the clerk, as such, was the lawful custodian. It wholly fails to state from whom the clerk received the money for the embezzlement of which he is indicted, or whether it was from one or several persons. But the indictment fails to specify what or whose money, the accused had misapplied and converted to his own use.

It may have been the jury fund, the school fund, or any other fund belonging to the county, of which there can be no pretense that the District Court clerk is the lawful custodian; and, indeed, it may have been his own private funds which he is charged with misapplying; and from some of the evidence admitted on the trial of the case, the last supposition would be as legitimate as any other. ■ But the appellant in this case-was indicted and convicted of the crime of embezzlement, without charging or proving a fraudulent intent.

In prosecutions of this character, the .guilt or innocence of the party prosecuted depends entirely upon the intent with which the act complained of was done; for without a criminal intent, there can be no crime.

The intent, therefore, was the material part of the crime attempted to he charged, and the omission to charge the fraudulent intent, whether by accident or otherwise, must be held fatal to the indictment. (See Bishop’s Criminal Procedure.) There was error in the rulings of the District Court in not sustaining the exceptions to the indictment; and for this error, the judgment is reversed, and the case dismissed. Reversed and dismissed.