¶1The conviction is under Art. 1538, Vernon’s Ann.P.C., for conversion of an estate; the punishment, ten years.
¶2Trial was in the 27th Judicial District Court of Bell County upon a change of venue from Harris County.
¶3The indictment returned into Criminal District Court No. 5 of Harris County, omitting the formal parts, charged that:
“ … on or about the 19th day of December, A.D. 1960, in said County and State, RICHARD H. PUTNEY was the administrator of the estate of Clara L. Currie, deceased, and as such had in his charge the estate, real, personal and mixed, of the said Clara L. Currie, and the said RICHARD H. PUTNEY and CLEM MCCLEL-LAND, acting together as principals, did then and there unlawfully and with intent to defraud the heirs and dis-tributees interested in such estate (the said heirs and distributees being to the Grand Jurors unknown), convert to their own use a part of the property of said estate, to-wit: ten thousand dollars in money, the same being then and there of the value of ten thousand dollars.”
¶4Upon the granting of a severance, appellant, Clem McClelland, was, by order of the court, tried first.
¶5The state’s proof shows that appellant was the duly elected, qualified, and acting Judge of the Probate Court of Harris County, Texas.
¶6On September 10, 1960, Mrs. Clara L. Currie died intestate, in Harris County, leaving an estate consisting of both real and personal property of the appraised value of approximately $160,000.
¶7On September 16, 1960, Richard H. Put-ney, appellant’s co-indictee and a practicing attorney in the city of Houston, was appointed temporary administrator of Mrs. Currie’s estate. His bond in the sum of $25,000 was approved by appellant.
¶8On October 11, 1960, the administration was by appellant’s order made permanent and the administrator’s bond fixed at $5,-000. On October 17, the said Richard H. Putney qualified as administrator of the estate by taking the oath and executing a bond that was approved by appellant in his official capacity.
¶9Upon the trial, Putney was called as a witness by the state.
¶10He testified that on December 19, 1960, he went to appellant’s office and presented to him an application and order which he had prepared for a fee to be paid to him as administrator of the estate. Appellant, at such time, according to the witness, acted upon the application by inserting in the space left blank in the order for the amount of the fee the figure $10,000, stating that it was an unusual case and he (Putney) would need assistance with it. He further *676testified that appellant stated to him that the fee would he divided between them, “an even split,” and instructed him to deposit his share to the account of Tierra Grande, Inc., in the Citizens State Bank, of Houston. The witness stated that he proceeded directly from appellant’s office to the Citizens State Bank, where he drew a check on the Currie estate for $10,000, of which he deposited $9,500 to his personal account and retained $500 in cash. He related that he then wrote a check for $5,-000 on his personal account, which he deposited in the bank to the account of Tierra Grande, Inc., and that he took a duplicate deposit slip for the $5,000 deposit to appellant’s office, at which time he did not see him but left the deposit slip on his (appellant’s) desk. The witness stated that he furnished appellant with a copy of the application and order for the attorney’s fee and that the last time he saw the papers they were on appellant’s desk. He also stated that he had no intention of investing in Tierra Grande, Inc., at the time of making the $5,000 deposit and that months later, in June, 1962, he received two stock certificates for 2,500 shares, each, in the corporation, from a man by the name of Bryson Martin. He further stated that at the time appellant instructed him to deposit his share in the Citizens State Bank he wrote on a slip of paper: “Tierra Grande, Iric., Citizens State Bank.” The slip of paper was introduced in evidence and shown by a handwriting expert to be in appellant’s handwriting.
¶11Other evidence and testimony were offered by the state to corroborate the testimony of the accomplice witness Putney.
¶12Appellant did not testify or call any witnesses in his behalf.
¶13Appellant insists that if the evidence be sufficient to corroborate the accomplice, it is insufficient to sustain his conviction as a principal, but, viewed from the state’s standpoint, shows him to have been an accomplice to the crime.
¶14With this contention, we agree.
¶15Articles 65-69, V.A.P.C., define who are principals in the commission of an offense.
¶16Article 65, supra, provides that
“All persons are principals who are guilty of acting together in the commission of an offense.”
¶17The succeeding Articles 66-69, supra, prescribe the manner in which one may become a principal in the commission of a crime.
¶18The six definitions prescribed by these articles have been set out by this court in the case of Middleton v. State, 86 Tex. Cr.R. 307, 217 S.W. 1046, as follows:
“(1) When A. actually commits the offense, but B. is present, knowing the unlawful intent, and aids by acts or encourages by words.
“(2) When A. actually commits the offense, but B. keeps watch, so as to prevent the interruption of A.
“(3) When A. is actually executing the unlawful act, and B. engages in procuring aid, arms, or means of any kind to assist while A. executes said unlawful act.
“(4) When A. actually commits the offense, but B., at the time of such commission, is endeavoring to secure the safety or concealment of A., or of A. and B.
“(5) When A. employs an innocent agent, or by indirect means causes the injury, or brings about the commission of the offense.
“(6) When A. advises or agrees to the commission of the offense, and is present when the same is committed, whether he aid or not.”
¶19Of the six ways in which one may be a principal to a crime, two require his presence at the time the crime is committed, and four make him a principal, though physically absent.
¶20Under the statutory definitions of a principal, whether the person be present *677or not when a crime is committed he must be actually doing something which associates him with the execution of the unlawful act at the very time it is done, to make him a principal. Schwartz v. State, 158 Tex.Cr.R. 171, 246 S.W.2d 174.
¶21An accomplice is defined in Art. 70 of our Penal Code, as follows:
“An accomplice is one who is not present at the commission of an offense, but who, before the act is done, advises, commands or encourages another to commit the offense; or
“Who agrees with the principal offender to aid him in committing the offense, though he may not have given such aid; or,
“Who promises any reward, favor or other inducement, or threatens any injury in order to procure the commission of the offense; or,
“Who prepares arms or aid of any kind, prior to the commission of an offense for the purpose of assisting the principal in the execution of the same.”
¶22In the early case of Cook v. State, 14 Tex.App. 96, this court, in setting out the distinction between an accomplice and a principal, said:
“The acts constituting an accomplice are auxiliaries only, all of which may be and are performed by him anterior and as an inducement to the crime about to be committed (Penal Code, Arts. 79 to 85 inclusive); whilst the principal offender not only may perform some antecedent act in furtherance of the commission of the crime, but when it is actually committed is doing his part of the work assigned him in connection with the plan and furtherance of the common purpose, whether he be present where the main fact is to be accomplished or not.”
¶23In 2 Branch’s Ann. P.C. 2d Ed., Sec. 710, at page 8, it is stated:
“If the defendant on trial was not present when the offense was committed and was doing nothing in aid of the common design when the offense was committed, he would not be a principal although the facts support the theory that he was both an accomplice and accessory, or a receiver of stolen property, or either.”
¶24In Hankamer v. State, 142 Tex.Cr.R. 23, 150 S.W.2d 794, it was held, in a prosecution under Art. 1538, supra, that the conversion of funds of cm estate w&s complete the moment the administrator formed the intent to use the money for his private personal use and did so use it.
¶25The facts in the instant case do not show that appellant was present when Putney withdrew the funds from the estate at the bank. Nor is there any proof that at the time Putney withdrew the funds appellant was doing any act in furtherance of their agreement to take the money from the estate.
¶26Under the facts, appellant was not shown to be a principal to the crime of conversion of the estate but was shown to be merely an accomplice thereto.
¶27In this state, an accomplice cannot legally be convicted of a felony as a principal. See: 2 Branch’s P.C., Sec. 710, pages 7-9, and cases there cited.
¶28Parnell v. State, 170 Tex.Cr.R., 30, 339 S.W.2d 49, relied upon by the state, is not here controlling, because, as shown in the opinion in the case, the accused was present at the time of the conversion of funds from the corporation.
¶29Middleton v. State, supra, also relied upon by the state, is not here controlling, because in that case the accused was present at the time of the homicide and doing certain acts in furtherance of the conspiracy to kill the deceased.
¶30By formal Bills of Exception Nos. 9, 10, and 11, appellant complains of the court’s refusal, prior to ordering change of venue of the cause, to hear evidence in support of three motions filed by him to quash the indictment or to permit him to *678perfect his bills of exception, by which he alleged that the indictment returned ■ by the grand jury was in violation of Art. 1, Sec. 10, of the Constitution of Texas, and of the Fifth and Fourteenth Amendments to the Constitution of the United States.
¶31By such refusal, the trial court has deprived this court and the Supreme Court of the United States of the opportunity to; review appellant’s constitutional claim. ' In refusing to permit appellant to submit proof in support of the motions, the court erred. Rothschild v. State, 7 Tex.App. 519, and Juarez v. State, 102 Tex.Cr.R. 297, 277 S.W. 1091.
¶32Upon another trial, the state should not be permitted to prove that two of the original incorporators of Tierra Grande, Inc., did not appear before the notary public when they signed and acknowledged the articles of incorporation, as such acts were extraneous transactions ■which had no bearing upon the issues in the case. For the same reason, evidence should not be admitted to show that appellant, as probate judge, had authorized Putney to make certain loans from the estate to third parties and also authorized Putney to execute a check in the amount of $15,-000 to Southwest Equities Corporation. That portion of the administrator’s final account showing certain old coins belonging to the estate as being in appellant’s possession should not, upon timely and proper objection, be admitted in evidence before the jury. The court should also limit in his charge the jury’s consideration of any evidence of extraneous offenses or transactions to the purpose for which it was admitted.
¶33The judgment is reversed and the cause is remanded.
¶34Opinion approved by the court.
¶35(dissenting).
¶36The offense charged was not one which the appellant, acting alone, could commit. He stands convicted for having acted to*679gether with Putney who was alleged and shown to be the Administrator of the Currie Estate. There was no allegation in the indictment to this effect but the evidence shows that the appellant was the Judge of the Probate Court who appointed Putney as administrator. As Probate Judge he was charged with the responsibility of seeing that Putney performed his duties, and shared with Putney the duty of preserving the property of the estate, that it might be delivered to those lawfully entitled to receive it and to no one else.
¶37The indictment alleged that Putney and the appellant acting together as principals converted to their own use $10,000 in money which was part of the property of the Currie Estate. The court’s charge properly instructed the jury to the.effect that proof of conversion of $50 or more of the money would be sufficient.
¶38The theory upon which the conclusion is reached that the Judge of the Probate Court was an accomplice rather than a principal to the conversion of a part of the property of the Currie Estate is that the offense was committed at the bank and was complete when the administrator “formed the intent to use the money for his private personal use and did so use it.”
¶39As to the $5000 belonging to the estate which, pursuant to the conspiracy, finally was appropriated to the use of the Probate Judge, there is no evidence or suggestion that the administrator at any time had the intent to use any part of this $5000 for his private personal use, or that he did so use it.
¶40The contention that the appellant was not a principal in the commission of the offense is quite similar to that we overruled in Parnell v. State, 170 Tex.Cr.R. 30, 339 S.W.2d 49.
¶41This is not a simple case where thieves break in and steal property that is in the possession of its owner. Here the door was open by reason of the positions of trust occupied by the conspirators and, in violation of such trust and of the statute, property of others entrusted to their care and custody was converted to their own use and benefit.
¶42As in Parnell v. State, supra, the offense was not committed by a single act.
¶43The money belonging to the Currie Estate was under the control of the administrator and was in his possession. He had the power to use or convert it, but no lawful right to do so without an order of the Judge of the Probate Court.
¶44The administrator retained possession of the $5000 that was appropriated to the personal use of the appellant until it was so converted and appropriated as the appellant and the administrator had agreed.
¶45There was evidence to the effect that the money deposited in the Tierra Grande Inc. account was withdrawn under the appellant’s directions beginning the next day for his personal use or benefit.
¶46The intent that the funds of the estate be converted to their own use was complete when the judge signed an order and the administrator accepted and acted upon it, the agreement being that $5000 of the amount would go to the judge. The check by which the $10,000 was withdrawn from the checking account of the estate and deposited to the personal checking account of the administrator shows on its face that the court’s order was its basis. It bore the notation “One-half attorney’s fees, one-half expenses of estate as per court order December 19, 1960.”
¶47The appellant made the fraudulent order which authorized the withdrawal under the unlawful conspiracy, and it was accepted. He directed the administrator where his $5000 was to be placed. He was present as that term is used in reference to the law of principals when the offense was committed.
¶48Suppose that the administrator had had the $10,000 belonging to the estate in cash in his pocket and, having obtained the order, had left half of it at a hiding place designated by the judge where he later found it!
¶49Could it be said that the judge was not a principal because he was not present at the *680hiding place when the money was left there for him?
¶50Stripped of the devious means used to cast an air of legitimacy upon the transaction and to conceal their crime and avoid its consequences, the supposed case is in essence the case before us.
¶51Suppose that having drawn the $10,000 check, the administrator had obtained in cash the part which it was agreed would go to the appellant and had carried it to the appellant. Would this Court reverse because the appellant was not with the administrator when the $10,000 check was drawn ?
As we said in Parnell v. State, supra:
“There is no settled mode in which appropriation of money or property of the principal by the officer authorized to receive and handle it must take place. It may occur in numberless ways, and the appropriation consummated in any manner capable of effecting it.
“In many classes of cases the question as to what acts are sufficient to show an appropriation is one of great difficulty.
“So long as the person entrusted with the money or property of another acts in accordance with the terms of his trust in reference thereto he is not guilty of embezzlement. He may deposit the money of his in the bank in his own name without being guilty of appropriating it. But a withdrawal by him for purposes of his own constitutes appropriation, 16 Tex.Jur. 70; or constitutes evidence of conversion. 16 Tex.Jur. 38, 39.”
¶52Holt v. State, 144 Tex.Cr.R. 62, 160 S.W.2d 944, is a case where a conviction for theft by false pretext from one Goolsbee was affirmed, Holt having been present and participated when false representations were made to Goolsbee at Warren, in Tyler County, but was not present when his co-conspirator thereafter extracted $20,000 in money from Goolsbee at Beaumont, in Jefferson County.
¶53This Court declined to follow the view that would narrow the commission of the crime to the very minute the money was delivered and said:
“We think the correct view is that the time of the crime of theft by false pretext extended from the beginning of the transactions when appellant first visited the Goolsbees until their loot was divided and that the place was in Warren, Tyler County, as well as near the hotel in Beaumont, Jefferson County.”
¶54Had the appellant’s order been legally proper and genuine, the drawing and cashing of the $10,000 check would not have constituted conversion of property of the estate, or any other offense. It was, however, a fraudulent and unlawful order. Half of the money was to be and was converted to the use of the appellant. There remained the securing of the safety of the conspirators from detection by proper entry in the records of the order of the appellant as probate judge authorizing the pretended attorney’s fees without disclosing that the money was to be shared equally with him, and the approval of the administrator’s account.
¶55It is true that the probate judge could not commit the offense alone. It is equally true that without the judge’s participation the administrator could not have committed it with any degree of hope that he could escape detection and punishment, and would not have shared the money converted with the judge.
¶56The parties acted together as principals, as did the parties in Parnell v. State. If the appellant was not present as that term is used in applying the law of principals, Parnell was not present when the conversion for which he was convicted as a principal occurred.
¶57If the majority is correct in holding that the appellant was an accomplice to the conversion and not a principal, Parnell was not a principal though he was convicted as such and the conviction was affirmed.
¶58For cases where the defendant whose conviction as a principal was affirmed, though he was not at the time in position to *681have committed the offense himself and was doing nothing at the time the offense was committed by his co-conspirator other than waiting some distance away to carry out his part in the conspiracy, see White v. State, 154 Tex.Cr.R. 489, 228 S.W.2d 165; Gonzales v. State, Tex.Cr.App., 350 S.W.2d 553; Hill v. State, 135 Tex.Cr.R. 567, 121 S.W.2d 996; Stubblefield v. State, Tex.Cr. App., 334 S.W.2d 150.
¶59The holding of the majority that the appellant was not a principal to the conversion will preclude another trial upon the indictment, hence there is no occasion to consider other claims of error.
¶60I respectfully dissent.