must occupy the designated fiduciary relation, and the money or property must belong to his principal, and come to the possession of the accused by virtue of that relation. Accordingly, an indictment of an express agent for embezzlement of $10,000, alleging the same to be the property of a certain bank, and not alleging that the express company had any property therein, nor that any fiduciary relation existed between the bank and the accused, is fatally defective.' But where the indictment charges the employment of the accused, and that he embezzled money which came into his hands "by virtue of his said agency and employment," it is not necessary to add that, at the time of the conversion and embezzlement, the money was in his possession and under his control by virtue of his agency.' In Utah, an indictment which charges embezzlement with such substantial certainty that the defendant cannot fail to be apprised of that with which he is charged, is sufficient. And such an indictment is not objectionable because, in charging that the defendant was "intrusted as bailee," the particulars of the bailment are not set forth.' In Washington, in Code, § 835, providing that "if any officer, agent, clerk, or servant, or person to whom any money or other property shall be intrusted for any specific. purpose, for hire, shall embezzle, * * [he] shall be deemed guilty of larceny." The words "for hire" qualify each of the enumerated classes; and therefore, in an indictment for embezzlement by an agent, an omission to charge that he was an agent for hire is fatal. In Wyoming, an indictment must set forth facts sufficient to constitute the given offense, so as to notify the accused of the issue he has to meet, and unless it does this, it charges nothing on which * 4 1 Griffin v. State, 4 Tex. App. 390; Gaddy v. State, 8 Tex. App. 127; Brady v. State, 21 Tex. App. 659. 2 Taylor v. State, 16 S. W. Rep. 302. The indictment charged that the accused was the agent and attorney in fact of A. E. S., “who appointed said O. P. T. her agent and attorney in fact under the name of A. E. L." Held, that the words quoted could not be rejected as surplusage, and any uncertainty therein disregarded, but that it was sufficiently clear that it was A. E. S. who acted under the name of A. E. L.—Taylor v. State, supra. 3 People v. Hill, 3 Utah 334. 4 Terry v. State, 1 Wash. 277. an issue can be raised by a plea of not guilty; this rule is founded on a principle that inheres in all criminal cases. Hence, an indictment for embezzlement must set forth the actual fiduciary relation and its breaches.' § 385. Description of property converted.-According to the weight of authority, an indictment for embezzlement is sufficient which describes the property embezzled with as much particularity as is required in an indictment for larceny." The omission to state any description or character whatever of the stolen money is a fatal objection, whenever presented during the progress of the cause.' The indictment need not aver the precise amount embezzled. It is enough to allege that it is "about" a given sum. The best description of the coins or bills embezzled that circumstances will permit, both in the indictment and upon trial, is all that is required." In Alabama, an indictment which charges that defendant, being the bailee of S., "did embezzle, or fraudulently convert to his own use, money to about the amount of $150, the personal property of said S., which came to his possession by virtue of said employment," is sufficient, though it does not describe the money or allege its value, since such indictment pursues the form given in 2 Code, 270. In Arkansas, one who is intrusted with a horse to sell, with the intention that he shall give the money received to the owner, is a bailee, within Mansf. Dig. § 1640, providing that, if any carrier or other bailee shall embezzle or convert to his own use any money, etc., which shall have come into his possession or been placed in his care, he shall be deemed guilty of larceny, although he shall not break, etc.; but, the proof being that he received a check which he collected entirely in paper currency, an indictment charging him with the conversion of 1 McCann v. U. S., 2 Wyom. T. 267. Com. v. Concannon, 5 Allen 502; People v. Cox, 40 Cal. 275; State v. Thompson, 42 Ark. 517. * People v. Cox, 40 Cal. 275. * Britton v. State, 77 Ala. 202. 'Territory v. Maxwell, 2 New Mex. 250. • Huffman v. State, 89 Ala. 33. certain paper currency, and certain pieces of gold, and in another count with the conversion of the check, does not sufficiently describe the money converted, and, there being no embezzlement of the check, no conviction can be had.' In Indiana, an indictment charging that defendant as agent of a certain person "for the purpose of collecting money on a certain lottery ticket," embezzled such money, but not particularly describing the lottery ticket, is sufficient. In Kansas, an information against a county treasurer for embezzling public funds in the county treasury, need not specify the kind of funds embezzled.' An information for the embezzlement of $530, which alleges that the money consisted of United States national bills, commonly called 'greenbacks,' and national bank bills, silver certificates, and gold certificates," coupled with an averment that the denominations and names of each are unknown to the prosecuting witness or to the informant, but that they all pass as current money of the United States, and all are of the value of $530, describes the money with sufficient certainty to resist a motion in arrest of judgment. In Louisiana, the indictment need not describe the sum of money alleged to be embezzled as consisting of coins or bank notes. In Massachusetts, the provision of Gen. St. ch. 161, § 42, that it shall be sufficient to allege generally in the indictment an embezzlement" "of money to a certain amount, without specifying any particulars of such embezzlement," is not in conflict with art. 12 of the declaration of rights, requiring the offense to be set forth "fully and plainly, substantially and formally." An indictment under § 42, charging one with embezzling, at a time and place stated, "certain money to the amount and value of $25,000," sufficiently describes the property embezzled. But an indictment which alleges the larceny or embezzlement of printed sheets, is not sustained by proof that they were delivered to the 4 1 Dotson v. State, 51 Ark. 119. ? Woodward v. State, 103 Ind. 127. 3 State v. Smith, 13 Kan. 274; State v. Graham, Id. 299. 4 State v. Combs, 27 Pac. Rep. 818. 5 State v. Thompson, 32 La. An. 796; State v. Palmer, Id. 565. 6 Com. v. Bennett, 118 Mass 443. 3 defendant by the owner to be bound, and that after he had folded and trimmed them, he embezzled and fraudulently converted them to his own use. The indictment should have charged a larceny or embezzlement of books.' And an indictment which does not allege the object for which the defendant was intrusted with the property, or describe the property, is fatally defective.' This was held in Texas, of an indictment against an officer for the embezzlement of money paid to him as fines, which failed to state the character or kind of the fines, and to charge a fraudulent intent. In Minnesota, an indictment for embezzlement need not state the character or amounts of the various funds embezzled, nor that the same is unknown to the grand jury. In Nevada, in an indictment against a county treasurer for embezzlement, it is sufficient to allege and prove the felonious conversion to his own use of any money that came into his possession, or was under his control by virtue of his office, without specifying with certainty the particular kind of funds embezzled, or the particular time when the money was received. In Ohio an indictment for embezzlement of several articles need not allege the separate value of each. In Texas, an indictment for embezzling coin need not 1 Com. v. Merrifield, 4 Metc. 468. ? Com.v. Smart, 6 Gray 15. 3 Peacock v. State, 36 Tex. 647. * State v. Munch, 22 Minn. 67; State v. Ring, 29 Minn. 78. In Missouri, an indictment against a township trustee charged that he had embezzled "public moneys belonging to the school fund of North township," in Dade county. Strictly speaking, the moneys belonged to the subdistricts of North township, rather than the township itself. Held, however, that this did not invalidate the indictment. It was sufficient to allege that the funds embezzled were 66 public moneys," and the amplification in the charge did not vitiate or limit the proof.-State v. Hays, 78 Mo. 600. Rev. St. Mo. 1879, § 1817, provides that in an indictment for embezzlement it shall be sufficient to describe the money taken simply as money, and such allegation shall be sustained by proof of any amount of coins or notes taken, though the species of coin or the nature of the notes shall not be proved. Held, that an indictment in one count for embezzling, within three years, a certain sum of money, is sustained by proof of the embezzlement within that time of such sum or any portion thereof, and under section 1821 it is not necessary to specify the time at which the offense was committed, as time is not of the essence of the offense.-State v. Pratt, 98 Mo. 482. 5 State v. Carrick, 16 Nev. 120. State v. Mook, 40 Ohio St. 588. specify the denomination of the several pieces; and if it does, evidence of the embezzlement of coin of equal aggregate value will be sufficient without proving the denomination; it is sufficient to charge the embezzlement of so much money, without adding that a more particular description is unknown.' * * § 386. Averment of ownership (a) In general.-In Alabama, in an indictment for embezzlement by an agent, the name of his principal must be alleged; and it is the safe practice, also, to allege the ownership of the property, though this averment may not be necessary, and must be proved as laid.' The Louisiana statute defining embezzlement provides that "any agent or servant who shall wrongfully use, dispose of, conceal, or otherwise embezzle any money, bill, note, check, order, draft, or any other property which he shall have received for another, or for his employer, principal, or bailor, or by virtue of his trust or employment, or which shall have been entrusted to his care, keeping, or possession by another, or by his employer, principal, or bailor, upon conviction thereof, or of * * * 1 Riley v. State, 32 Tex. 763. 2 Taylor v. State, 16 S. W. Rep. 302 66 * * The following descriptions of the property embezzled have been held sufficient: “Certain books, letter-files, knives, bank shares, slates, and sealingwax, to about the value of forty dollars."-Mayo v. State, 30 Ala. 32. "Bonds of the United States of America for the payment of money, issued by authority of law," and of an aggregate value of" $1,000-Com. v. Butterick, 100 Mass. 1. "Certain United States 5-20 government bonds, which were valuable securities, of the value of $5,000."-State v. Meyers, 68 Mo. 266. "Five thousand five hundred dollars in money, the same being then and there current money of the United States, and of the value of five thousand five hundred dollars, which said money was then and there the property of Palo Pinto county."-Lewis v. State, 28 Tex. App. 140. The following descriptions have been held insufficient: "Certain money to a large amount, to-wit, to the amount of one hundred dollars."-State v. Thompson, 42 Ark. 517. "A large sum of money, to-wit, the sum of 1,100."-Bork v. People, 16 Hun 476. "Eight dollars in money, consisting of one five-dollar bill, one two-dollar bill, and one one-dollar bill, circulating medium current as money."-Reside v. State, 10 Tex. App. 675. Compare Gerard v. State, Id 690. "Current money, a more particular description of which said jurors have not and cannot give."-State v. Denton, (Md.) 22 Atl. Rep. 305. "A lot of lumber," " a certain lot of furniture," and "certain tools."--State v. Edson, 10 La. An. 229. 3 Washington v. State, 72 Ala. 272. |