No. 2,588.

#### THE PEOPLE OF THE STATE OF CALIFORNIA, Respondent, *v.*GEORGE M. COX, Appellant.

Cbiminal Pbactioe. — Embezzlement.—An indictment for embezzlement should state the description of the property embezzled, with the same particularity as is required in an indictment for larceny.

Idem. — The omission, in an indictment for embezzlement, to state any description or character whatever of the stolen money is a fatal objection, whenever presented dining the progress of the cause.

Appeal from tbe County Court of Los Angeles County.

Upon arraignment tbe defendant entered tbe plea of “not guiliy.” Subsequently when tbe case was called for trial, counsel for defendant asked leave of tbe Court to withdraw tbe plea of “not guilty,” for tbe purpose of interposing a demurrer to tbe indictment upon tbe following grounds :

1st. That it does not substantially conform ■ to tbe requirements of Sections 237 and 238 of tbe Criminal Practice Act,

2d. That more than one offence has been charged in tbe indictment.

3d. That tbe facts stated do not- constitute a public of-fence.

Leave was denied by tbe Court.

Defendant was found guilty as charged in tbe indictment. Counsel moved for a new trial upon tbe grounds among others, that tbe Court erred in tbe decision of- questions of law arising during tbe course of tbe trial, and that tbe verdict is contrary to law and tbe evidence; which motion was overruled. Defendant’s counsel then moved in arrest of *276judgment, upon tbe ground that the facts stated in the indictment do not constitute a public offence. This motion was also denied, and defendant appealed.

The other facts are stated in the opinion,

*Kewen & Howard,*for Appellant.

*First*— There is no averment in the indictment of the kind or value of the effects alleged to have been embezzled.

The indictment declares that the defendant “ did receive certain money,” and again, *“*did convert the sum of eight hundred dollars,” with no farther specifications on the subject.

Section 70 of the Criminal Practice Act, contemplates “convertible’' money — money of value in commerce or trade ; and imperatively demands that the party charged with violating its provisions should be informed of the value and character of the abstracted sum. The true doctrine is “ The thing stolen must be correctly described for the purpose of identification, and when a party is indicted for stealing coin, the kind of coin must be specified.” *(Peoples. Winkler,*9 Cal. 236, 2 Bishop--on Crim. Law, Sec. 358.)

*Jo Hamilton,*Attorney-General, for Bespondent.

As the defendant failed to demur to the indictment, the description of the money as eight hundred dollars in money, without describing the character of the money, was sufficient. *(People*v. *Jim Ti,*32 Cal. 60; *People*v. *Farrell,*31. Id. 576; *People*v. *Shotwell,*27 Id. 401; *People*v. *Gar-nett,*29 Id. 620.)

The facts charged are sufficient to constitute the offence. The indictment uses the language of the statute, which has always been held to be sufficient. *(People*v. *Dolan,*9 Cal. 576; *People*v. *Martin,*32 Id. 91; *Peoples. Cronin,*34 Id. 191; *People*v. *Bodriguez,*10 Id. 50; *People*v. *White,*34 Id. 183; *Peoples. Thompson,*4 Id. 238.)

*277Wallace, J.,

delivered tbe opinion of the Court:

The indictment in this cause, found under Section 70 of the Criminal Code, avers that Cos is guilty of the crime of embezzlement, in that he, being at the time a clerk in the employment of a certain business firm, received in the course of his employment “certain money” belonging to his principals, “and did willfully, and unlawfully and feloniously embezzle and convert the sum of $800 of the said money so received to his own use, with intent to steal the same,” etc.

It will be seen that there is not contained in the indictment the slightest designation of the character or description of the money received or embezzled, it is not even averred to have been the lawful money of the United States, or made or issued by any government or sovereignty whatever.

In an indictment for larceny of money it is settled here that the particular denomination and description of the money stolen should be set forth; and, though this Court held in *People*v. *Jim Ti*(32 Cal. 61), that a description of the money as being “ gold and silver coin * * * of the value of $235.75” was sufficient, where no special demurrer to the indictment was interposed, I apprehend that 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.

An indictment for the crime of embezzlement ought to state the description of the property embezzled with the same particularity as is required in an indictment for larceny. For obvious reasons it may be difficult to give such a description of property embezzled, particularly where the offense is committed by a person in the course of a continuous employment, as a clerk, cashier, or the like; but I find nothing in the law authorizing us to make any distinction upon this point between offences of larceny and embezzlement. It would promote the ends of justice, perhaps, if a statute should be passed to correct the law in this particular, as has been done in England, where it is enacted by *278Stats. 7 and 8, Geo. IY., Cb. 29, Sec. 48, that “it shall be sufficient to allege tbe embezzlement to be' of money, without specifying any particular coin or valuable security,” etc.

Judgment reversed and cause remanded.