The appellant was convicted for receiving property which had been embezzled, his punishment being fixed at two years’ confinement in the State penitentiary. The indictment charges that one Conception Torres embezzled certain hides; not only the facts constituting embezzlement are averred, but the offense of embezzlement is charged in terms. It then alleges that the defendant received the hides knowing them to have been embezzled.

*282The question presented, conceding all this to be true, is, has the defendant Leal violated article 743 of the Penal Code, which reads: “If any person shall receive or conceal property which has been acquired by another in such manner as that the acquisition comes within the meaning of the term theft, knowing the same to have been so acquired, he shall be punished in the same manner as, bylaw, the person stealing the same would be liable to be punished.” (Italics ours.) If Torres acquired the hides, and his acquisition was in such manner as to constitute the crime of theft, and defendant received them knowing them to have been so acquired, he would be liable. But were the hides so acquired ? By no means. The allegations in the indictment place this question beyond cavil. The acquisition by Torres was not fraudulent, but was legal,— a duty,— and did not constitute theft. This being the case, receiving them by defendant was not a violation of the Code.

While it is trac that a majority of this court have held that theft includes embezzlement, they have never held that embezzlement includes theft. To thus hold would make th e lesser include the greater. J3ut, be this as it may,, no person can legally be convicted of receiving stolen goods unless when the acquisition was in such manner as to constitute theft. We are therefore, of the opinion that to receive property which has been embezzled constitutes no offense against the law of this State.

The judgment is reversed and the prosecution dismissed.

Reversed and dismissed.