delivered the opinion of the court.

The fact that Fortenberry held the office made him liable to punishment for embezzlement. His failure to take the oath of office did not exempt him from liability for official miscon*287duct. 1 Bishop’s Cr. Law, sect. 464; 3 Greenl. on Ev., sect. 483; 2 Archb. Cr. Pr. & Pl. 463, top p. 1363; The State v. Sellers, 7 Rich. 368; The State v. Mayberry, 3 Strobh. 144; The State v. McEntyre, 3 Ired. 171; Diggs v. The State, 49 Ala. 311; Rex v. Barrett, 6 Car. & P. 124; Rex v. Gardner, 2 Camp. N. P. 513.

Judgment affirmed.