#### White vs. The State.

*Laremy*— M. *8., eh.*165, *see.*28.

X. Sec. 28, ch. 105, R. S., applies only to embezzlement by common carriers, and others in like capacity carrying property for hire, and persons who may be entrusted with such property by the carrier to be carried to its destination.

2. A certain count of *the*indictment in this case *(pide infra,) held*not to charge any offense.

*234ERROR to tbe Circuit Court for *Dodge*County.

Tbe plaintiff in error was convicted on tbe first count of an indictment, wbicb was in substance as follows: That one William E. Culver, on tbe 1st of April, 1865, at tbe city of Milwaukee, delivered and entrusted to bim (said *White)*tbe sum of $300 of tbe properties and moneys of one Joel Culver, to be carried by said *White*and delivered by bim for said William E. Culver, and by said William E. Culver sent to one Charles Clason of Williamstown in Dodge county; and said *White*'took into bis possession said money,. to be so carried and delivered; and afterwards, to wit, on tbe 1st of April, 1865, at said town of Williamstown, feloniously embezzled and fraudulently converted said money to bis own use; “ whereby, and by tbe force of tbe statute in such case made and provided,” said *White*“ is deemed to have committed tbe crime of larceny and thereupon it is charged that said White, at the time and place before specified, “ in manner and form aforesaid, tbe said money, tbe property of tbe said Joel Culver, from the said Joel Culver feloniously did steal, take and carry away,” &c„

Motions in arrest of judgment, and to set aside tbe verdict and grant a new trial, on tbe ground that tbe above count did not charge any offense, and on other grounds, were denied; and judgment rendered upon tbe verdict; to reverse wbicb this action is brought.

*M P.*Smith, for plaintiff in error,

contended that sec. 28, eb. 165, R. S., applies only to common carriers, and others in like capacity (carrying for hire), and those to whom such carriers may have entrusted tbe goods received by them — in transit to then'final destination; citing *Sandiman v.*Breach, 7 B. &Gr., *96; Commonwealth v. Brown,*4 Mass., 580, 585; Roscoe’s Gr. Ev., 438; *Nichols v. People,*17 N. Y., 116; *Commonwealth v. Williams,*3 Gray, 461; *Comm. v. Smart,*6 id., 15 ; Barber’s Or. Daw, 141; 2 Whart. § 1940 et seq.; *Bex v.*Nettleton, R. & M., 259; 1 Moody, 259.

*The Attorney General,*for tbe state.

*235Cole, J.

The defendant was convicted upon the first count in the indictment. That count was evidently drawn under section 28, chap. 165, R. S. But it is clear that this section does not apply to the case. It only applies to embezzlement by common carriers, and others in like capacity, carrying property for hue, and persons who may be entrusted with such property by the carrier to be carried to its destination. This is the construction placed upon a similar statute in Massachusetts, and we think it is the correct one. *Commonwealth v. Williams,*3 Gray, 461; see likewise the case of *Commonwealth v. Smart,*6 Gray, 15.

Although the indictment shows that the defendant was guility of a gross breach of trust in appropriating the money to his own use, yet it fails to state an offense under section 28. And being thus fatally defective, no further proceedings can be had upon it; but the judgment of the circuit court must be reversed, and the defendant discharged.

*By the Court.*— Ordered accordingly.