Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 67
1875.] THE STATE v. BROOKS. 67
Opinion of the court.
a deputy or an employee of the sheriff, it would be inmmaterial
whether he had committed a breach of trust or not.
The case of the United States v. Hutchinson, as reported
in a note to 2 Whart. Prec., 460, note b, has been cited as
giving a different construction to a similar statute. The
law of the United States under which that case was prosecuted
specified, "all officers and other persons charged by
this act, or any other act, with the safe keeping, transfer,
and disbursement of public moneys," and was held to apply
only to the legally authorized fiscal agents of the Government
recognized as such at the Treasury of the United
States. Our statute is not confined to those who are custodians
or keepers of public money, but extends to officers
who collect or receive it. In the case just referred to, the
court held that a clerk for the Treasurer of the Mint, whose
duties were prescribed by the Director of the Mint, and
gave him charge of the moneys for the ordinary uses of
the Mint, but whose name did not appear in the books, the
accounts all being kept in the name of the, Treasurer, did
not have the legal possession of such moneys; that he only
had a charge of these moneys, and was liable for their larceny,
instead of for embezzlement. It is clear that the
deputy sheriff has both the actual and the legal possession
of the taxes which he collects, and is not subject to indictment
for theft. The case differs materially from the present,
both hi the statute on which it was founded and in the
The objection is not specially taken to the indictment
that it does not allege that the sheriff had allotted to the
defendant any part of the county. We think, however, this
was unnecessary. The averment that he was, as deputy
sheriff; collector of taxes in and for said Marion county, is
sufficient to support the indictment, without setting forth
the various steps by which he acquired the office or the
authority. This is so, even if it be held that an allotment
of a part of the county or of the whole must precede the
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/75/ocr/: accessed May 27, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .