#### John J. Gravatt *v.*The State.

1. A person employed at a monthly salary, who, in the discharge of his duties, is subject to the immediate direction and control of his employer, is, in an indictment for embezzlement, properly described as a servant.

2. On the trial of a charge of embezzlement, the fact that the money alleged to have been embezzled by the accused was received in several sums, at different times, and frota different persons, affords no ground for requiring the prosecutor to elect on which sum he will rely for conviction.

8. Where the jury had been instructed as to what was necessary to constitute embezzlement, and that in order to convict the accused the offense must have been committed in the county laid as the venue, instructions directing the jury to inquire as to the county in which the accused formed the criminal intent, disconnected from acts designed tc carry such intent into execution, were immaterial, and calculated to mislead, and were therefore properly refused.

Error to the Court of Common Pleas of Montgomery county.

Gravatt, the plaintiff in error, was convicted of embezzling one hundred and ten dollars as the servant of the Grover and Baker Sewing Machine Company.

In the count of the indictment on.which he was convicted, he was charged with the embezzlement, among other things, of one hundred and ten dollars in money; a promissory note for sixty dollars, and a sewing-machine of the value of one hundred and twenty-five dollars.

The evidence given on -the trial shows, substantially, the following facts:

In August, 1873, Gravatt was employed by the company to canvass in the city of Dayton, Montgomery'county, to *163sell sewing-machines, collect moneys payable therefor, and report the results of his labors to the general manager, at the company’s office, in Dayton. When so directed, he had authority to sell machines and collect moneys in Montgom-. cry county, outside the city, as well as in other counties adjoining Montgomery. For these services he was to receive a salary of seventy-live dollars per month, payable in weekly installments at the office, in Dayton.

On the 1st day of October, 1873, he obtained a cabinet sewing-machine from the office for the purpose of supplying John Weller, who resides near Oentreville, Montgomery county, with one of that pattern. He effected the sale of this machine to Weller, receiving from him seventy dollars ($70) in part payment therefor. On the same day he received fifty dollars ($50) from Samuel Weller, in payment of- a note executed by him for the payment of sixty dollars ($60), due about January 1, 1874, which G-ravatt testified he obtained from the clerks in the office, with the authority to collect the same from Weller, who had previously offered fifty dollars ($50) by way of discounting the same before its maturity. Both of these transactions took place in Montgomery county. He made no report at the office of having collected this money, but, on the contrary, stated on the morning of the 3d of October, 1873, that the machine he had taken away on the 1st of October did not suit Mr. Weller, and that he was going back to Oentreville for the purpose of selling to him the ninety-dollar machine then on his wagon. Instead of returning to Mr. Weller’s, however, he went westward to Preble county, where he borrowed thirty-five dollars ($35), pledging the ninety-dollar machine as collateral security upon the note given therefor. From there, he went to Indiana and Illinois. He was returned to'Ohio under a requisition.

On the close of the evidence for the state, in chief, the court was moved, on behalf of the prisoner, to require the prosecuting attorney to elect whether he would rely for conviction on the transaction with John Weller, or on the transaction with Samuel Weller; and likewise to require *164him to elect whether he would rely on the charge of embezzling the machine and the note, or on the charge of embezzling the money which the prisoner received for the note and machine. The motion was overruled.

The charge of the embezzlement of the machine and the note was subsequently abandoned by the prosecuting attorney, and the jury were so instructed by the court; and that, as to these articles, the state only relied for conviction on the charge of the embezzlement by the prisoner of the money received for them.

After the general charge had been delivered to the jury, the prisoner’s counsel asked the court to instruct them, in-substance, that if they found the facts as to the employment of the prisoner to be as before stated, such facts-would constitute him the agent, but not the servant of the sewing-machine company. This instruction was refused.

The jury propounded to the court the following question : “ Must the intent to embezzle the money collected in this county have been formed therein ? ”

The court responded to the inquiry as follows: “ If the business office of the employer, to which defendant was to make his returns of collections, was in this county, and he-collected money here to be delivered to his said employer, and -afterward embezzled the same, it is immaterial in what county he formed the design or intent to so embezzle it.”

The prisoner’s counsel then asked the court to give the following instructions:

1. That if the defendant did not feloniously intend to-appropriate the money collected by him in Montgomery county, to his own use, while in said county, but made up his mind to do so after he was in Preble county, the jury must acquit the defendant.

2. If the jury find that the defendant went into Preble county on the business of the sewing-machine company to sell sewing-machines, or transact business as the servant of the company with the knowledge or assent of the company, or in the usual course of his business for the com*165pany, and did notform the intention to embezzle the money of the company so collected in Montgomery county, or any part thereof, within this county, then the jury can not find the defendant guilty of such embezzlement. These instructions were refused. Exceptions were taken to the refusals of the court to charge, and to the charge as given.

The foregoing statement contains as much of the case as is material to an understanding of the questions decided.

*McKemy § Nanerth,*for plaintiff in error:

I. For a definition of “ servant,” see 1 Black’s Com. 425, *et seq.;*2 Kent’s Com. 248, *et seq.*

For a definition of “ agent,” see 2 Kent’s Com. 612; Bouv. L. Dict.; Reeves Dom. Rel. 847; 1 Black’s Com. 427.

The statute of embezzlement recognizes a distinction between servant and agent, which distinction is recognized *by*the authorities above cited, Story and other text writers.

The term “servant” having a certain technical or legal meaning, *Webster*can not be regarded as authority in defining.it.

The evidence shows that Gravatt was an agent.

II. The court erred in overruling the motion of the •accused to require the stale to elect between the note and the money received by the accused on said note, and between ■the machine and the money received as part payment for the same. *Womack*v. *The State,*7 Caldw. (Tenn.) 509. ■This is not the case of two distinct offenses being charged in the same count; but rather charging the accused twice in the same count, with but a single offense in different forms.

III. The court erred in its instructions to the jury on the question as to where the intent to embezzle was formed. *State*v. *Dunlap,*65 N. C. *288; Whitney*v. *Sherborn,*12 Allen, 111.

The charge of the court tended to mislead the jury in the application of the law to the facts; and gave the evidence on behalf of the state undue importance, to the prejudice of the accused. *Fine*v. *St. Louis Public Schools,*39 *166Mo. 59; *Chappel*v. *Allen,*38 Mo. 213; *Larue*v. *Russell,*26 Ind. 386; *Grabe*v. *Nichols,*36 Ill. 92; *Stacy*v. *Cobbs,*36 Ill. 349; *Little Miami R. R. Co.*v. *Wetmore,*19 Ohio St. 111; *Pittsburg, Ft. W. & C. R. R. Co.*v. *Slusser,*Ib. 157: *Lombard*v. *Martin,*39 Miss. 147.

*F. Thompson*and *J. P. Whitmore,*for the state:

The charge of the court as to what constitutes a servant embraces the substantial, if not the literal, definition given by standard lexicographers of the term servant, which is aided by that given in the judicial decisions as to who is a servant within the meaning of the statute. Abbott’s Dig. Law Cop. 733; *Hovey*v. *Ten Broeck,*3 Robt. 316; Web. Un. Dic. 1206 — servant.

Whether a person is a servant, generally depends on so many considerations that it is one left to the jury to determine as a matter of fact, considering the nature of the occupation in which the individual is engaged, and the kind of employment. A test used in many cases is to ascertain whether the accused was bound to obey the orders of his employer, so as to be under his control, and bound to de-. vote his time as they should direct. Where there is a salary, that raises a presumption that the person receiving it is bound to devote his time to the service. *Queen*v. *Negus,*5 English, 403-405; *Rey*v. *Wilson,*37 Eng. L. *&*E. 603-605 ; Roscoe’s Cr. Ev. 406-410.

The distinguishing feature of the relation of master and servant, as held in this state, is that the employer retains the control over the mode and manner of doing the work under the contract of hiring. *Cincinnati*v. *Stone,*5 Ohio St. 38; *McGuire*v. *Grant,*1 Dutcher, 356; 2 Kent’s Com. 259.

A master is one who has legal authority over another, and the person over whom such authority may be exercised is his servant. Schouler’s Dom. Rel. 599, 611, 612; Reeve’s Dom. Rel. 339 ; *Scott*v. *Mayor,*37 Eng. L. & E. 465.

A state of subordination to the commands of those under whose diréction one is acting constitutes the relation of *167master and servant. A person employed by a corporation at a fixed salary is, therefore, a servant of the corporation. *Williamson*v. *Wadsworth,*49 Barb. 294; *Chapman*v. *N. Y. Cen. R. R.*Co., 31 Barb. 399.

As to the venue the court is referred to the following authorities: 32 Ind. 384; 31 Ind. 480; Crim. Code, sec. 72-195 ; *Reg.*v. *Murdock, 2*Den. C. C. 298; 8 Eng. Law and Eq. 577; Russell on Cr. 180, 181; *King*v. *Taylor,*3 Bos. & Pul. 596; 2 Russell on Cr. 190; B. & R. 63; *Gibbs*v. *The State,*3 Heisk. 72; 2 Bishop’s C. P. 291; 1 Bish. C. P. 77; *People*v. *Garcia,*25 Cal. 531.

Where several articles of property are stolen or embezzled at the same time, the transaction being the same, they may be embraced in one indictment, and the embezzlement thereof charged as one offense. The court, we maintain,, properly overruled the motion to require the state to elect as to ’which articles of property it would require the defendant to answer upon the trial of the case. *State*v. *Hennessy,*23 Ohio St. 339, 347; *Brown*v. *State,*18 Ohio St. 496*Lorton*v. *State,*7 Mo. 45.

It is only in cases where two or more indictments for the same criminal act may be pending that the court may properly require the prosecuting attorney to elect upon which he will proceed. Such is not the ease at bar. Crim. Code, sec. 88

White, J.

Three grounds of error ar.e relied on in argument in this case.

The first relates to the charge in regard to what would constitute the plaintiff in error a servant within the meaning of the statute. He was employed at a monthly salary, and, by the terms of his employment, he was, in the discharge of his duties, subject at all- times to the immediate direction and control of the agent of the company. His duties were to make sales of machines, and to return to the agent the proceeds of such sales, whether the same consisted of money or notes. These facts, the court told the jury, would be sufficient to make him a servant. In this *168there was no error. Where a person in the employment of another is, in the discharge of his duties, subject to the immediate direction and control of his employer, he is properly described as a servant.

The next ground of error relates to the action of the court on the trial in overruling the motion to require the prosecuting attorney to elect upon which of the charges he would claim a conviction from the evidence.

As the charge of the embezzlement of the machine and of the note was abandoned on the trial, the only question is, whether there was error in refusing to order an election as to the several sums of money collected from John Weller and Samuel Weller, both of which sums were relied on to prove the charge of the embezzlement of money.

We see no error in the action of the court. The money, it is true, was received at different times and from different persons. But the collection of these several sums by the plaintiff in error was lawful, and in the due course of his employment. The evidence did not show a distinct and independent conversion of each sum, but the conversion of both sums as one transaction.

The remaining question is, whether the court erred in charging the jury, and in refusing to charge as asked on the subject of intent. The court had already, in the general ■charge, instructed the jury as to what was necessary to constitute embezzlement, and that in order to convict the defendant', the offense must have been committed in Montgomery county. The intent of the prisoner in regard to the money, not carried into execution, was an abstraction, and wholly immaterial. If he knowingly converted the money to his own use, under the circumstances prescribed in the statute, the offense was complete. Instructions directing the jury to inquire as to the county in which the criminal intent was formed, disconnected from acts designed to carry such intent into execution, were immaterial and calculated to mislead. They were, therefore, properly refused. *Jfigment affirmed.*

McIlvaine, C.J.,Welch, Rex and Gilmore, JJ., concurred.