#### The State v. Thompson.

Embezzlement: *Indictment must describe money.*

An indictment for embezzlement must describe the money embezzled as specifically as in larceny.

APPEAL from *Miller*Circuit Court.

Hon. C. E. Mitciiel, Circuit Judge.

*Barker Johnson*and *G. B. Moore,*Attorney General, for appellant.

An indictment charging defendant with embezzling a certain amount of money, to wit,-dollars, on a day certain, is sufficient. *Bix v. Carson, Bussell $ Byan’s Grim. Gases, 303; 1 Moody Grim. Gases,*JJ7; *Jacobs' Fisher's Big., vol. 3, 3173; 1 Gar. Bayne, 313, JJ>J¡,; Arch. Grim. Fro., vol. 8,1331; Gantt’s Dig., secs. 1793-5; 9 Mete., 138; Boscoe Or. Eo., 1^39, marg.; 3 Car. £■ Payne, ; 5 lb., 300 ; Jacobs’ Fisher’s Dig., vol. 3, 3171.*

*518
      *B. B. Williams*and *Paul Jones*for appellee.

In indictments for embezzlement it is necessary to describe the property stolen with the same particularity as in larceny. Cites *Bishop’s Grim. Law, 3d. ed., top p. 388, note 5, 380-1-8 etc.; see. 1367 Gantt’s Big.; Biz r,. Furneav, Buss. £ Bg., 385; Arch.. Or. Pr. £ PL, vol. 3, p. 447, votes 3 and 4-; Bish. Grim. Pro., p. 389, note 8;*J Za/;., *9; Chitty Or. Law, col. 3,p. 61 of add,end,a; 8 Gal., 48, 43, 44-*Our statute is similar to 39 Geo. Ill, c. 85, and under that statute the indictment must contain all the requisites of an indictment for larceny. *Arch. Or. Pr. § PI., 447, 3 and 4 notes, and cases supra; Bishop Cr. Pro., top 389 and note 8.*

Our Legislature failed to pass an *enabling*statute similar to *7 and 8 Geo. IV, ch. 89, sec. 48,*under which the English courts held that no specific coin or values need be alleged, and, until this is done, indictments for embezzlement stand upon the same ground as for larceny, and must be drawn with the same particularity.

EakiN, J.

These cases are identical, save as to the time of the offenses. The apj)ellee was indicted for embezzlement, as clerk of John O’Conner. Each indictment sets forth the fiduciary character of the defendant, by virtue of which it is charged he did “ receive and take into his possession *certain money to a, large amount, to wit, to the amount of one hundred dollars,*for and in the name and on the account of the said John O’Conner, his master,” and that he did “ fraudulently and feloniously ” embezzle the same against the will and without the consent of said O’Conner. Demui’rers to the indictments were sustained and the State appeals. The point, in each case presented, is the sufficiency of the indictment in not describing the property; the defendant contending that the description should *519be as specific as in case of larceny. This seems to have been the ground of the ruling by the Circuit Judge.

Embezzlement: Indictment must describe money embezzled.

Embezzlement, at common law, was not a crime. Being, however, akin to larceny in its nature, and involving something of the same moral turpitude, it has been thought necessary in England and America, to make it a species of larceny, or to so extend the definition of larceny as to embrace it. There was little need of that in the earlier stages of the common law, when chattels were comparatively few, and when the simpler modes of business did not afford trusted employes the same facilities, or scope for peculations, as are now found inseparable from business transactions.

These statutory provisions in England have been subsequent to the fourth year of James I, and have not been adopted here -with the common law. There was indeed an act of 21 Henry VIII, ch. 7, which made it a felony in any servant to take away with intent to steal, any casket, jewels, money or other goods, given to him by the master to keep ; but as in such cases the possession was supposed to be in the master at the time of taking; the law was rather declaratory than new, for that would be larceny at common law.

The first of the peculiar statutes, covering the offense of embezzlement as now understood — that is, embracing within the prohibition and punishment of larceny, acts which before that were not indictable as such — is the statute of 39 ■George III, passed in 1799, and which is substantially the same with the provision of our revised statutes, brought forward in *Gantt’s*Digest, *section 1367.*The difference is merely verbal.

Under that statute the English decisions are numerous and uniform, to the effect that the indictment must describe the property embezzled, with the same clearness and precision as *520was required in the case of larceny. (See text and cases cited in *Russell on Crimes, vol. 2, p. 185,*and *Bishop’s Criminal Procedure, vol. 2, sec. 320.)*This naturally flowed from the idea that embezzlement was rather a species of larceny, included within enlarged boundaries of the definition, than an offense of a distinct nature. The same rules for-charging and proving the offense were applied.

This, evidently, did not meet the requirements of modern business, and tended to neutralize the good which might have been expected from the act. After nearly thirty years the act of 7 and 8 George IY was passed,, which provided, amongst other things, “ that it shall be sufficient to allege the embezzlement to be money, without specifying any coin or valuable security,” and that a conviction might be had upon such indictment if it were proved that the offender had embezzled any piece of coin or valuable security of any amount. Upon this statute the modern English forms of indictment have been modeled, and can not be safely taken as guides in a State like this, where the thirty-ninth George III has been enacted,, without the enlarging and remedial provisions of the seventh and eighth George IY.

If this were an indictment for larceny, the description of the property would not be considered sufficient. *(Barton v. State, 29 Ark., 68.)*Following the English rulings upon the act of 39 George III, it can not be held good in a prosecution for embezzlement. The case of *The King v. Flowers, 5 Barn. and Cress., 736,*is directly in point. See also *Rex v. Furneaux, Russ. and Ryan,*being volume 1 of *“British Crown Cases,” p. 334.,*where the property received was charged to be “one pound eleven shillings.” This was held insufficient by all the judges save one, at Trinity term, 1817.

If the Legislature of our State may deem the present *521act inadequate to effect as much good as may be desirable and practical, it is for them to consider what changes may be made. We find no error in the judgment.

Affirmed.