1. — Mistake in Charge Stating Offense.
The indictment contained three counts, two for theft and the third for embezzlement. The trial was on the third count, for embezzlement, and the charge of the court related entirely to embezzlement; but, through mistake, the charge stated the offense as "burglary" instead of "embezzlement." Held, the mistake did not constitute reversible error, as it was not calculated to injuriously affect defendant.
2. — Embezzlement — Principal — Charge — Accessory.
Although the law makes the act of embezzlement depend upon agency, yet one who is not an agent can become a principal in the crime, who is present, by aiding and encouraging the principal to commit the embezzlement; and the fact that such party afterwards received a portion of the money embezzled did not require of the court a charge as to the law pertaining to accessories.
3. — Accomplice Testimony — Charge.
Where the court submits to the jury the question as to whether a witness is an accomplice, it is error to fail to instruct the jury as to what constitutes an accomplice.
HENDERSON, JUDGE.
Appellant was convicted of embezzlement, and his punishment assessed at imprisonment in the penitentiary for a term of seven years; hence this appeal.
The only assignments relate to the charge of the court. It appears that the court told the jury that defendant was on trial for the offense of "burglary," whereas the indictment only charged in the first two counts theft, and embezzlement in the third count; there being no burglary in the case. This was evidently a mistake on the part of the trial judge, as nothing further is said in the charge in regard to burglary, but the charge relates entirely to embezzlement — the trial being on the third count of the indictment. While this mistake should not have occurred, still it does not appear to us that it was of a character calculated to injuriously affect appellant.
Nor do we believe the court was required to give a charge on the subject of accessories. True, some of the proof against appellant showed that appellant received, or was paid, money by the agent of the prosecutor, the next morning after the money had been intrusted to such agent; yet this is but one of a number of circumstances tending to show appellant's guilt of the offense of embezzlement. It is not pretended that appellant was the agent of prosecutor, as he was not intrusted with the $80, or any part thereof, by prosecutor, Williams; the proof showing that the money was delivered by Williams to Ben Feinstein. But the proof shows appellant was present at the time and his acts and conduct show that he was aiding and encouraging prosecutor to intrust his money with said Feinstein, as his agent. Although the law makes the act of embezzlement depend on the question of agency, yet one who is not an agent can become a principal in the act of embezzlement by aiding and encouraging the agent to commit the embezzlement. As stated, we think appellant's acts and conduct show that he rendered such aid.
Appellant complains that Lonnie Henderson, who was a witness against him, was unquestionably an accomplice, and that the court should have instructed the jury to that effect; but instead of doing so the court submitted to the jury, in its charge, the question as to whether or not said Lonnie Henderson was an accomplice, utterly failing to define to the jury what constituted an accomplice. In this we think the court erred. Said Henderson was an important witness against appellant, and when the court submitted to the jury to determine whether or not said witness was an accomplice, he should have also instructed them what an accomplice was. The judgment is accordingly reversed and the cause remended.
Reversed and remanded.