#### United States, appellant, *v.*McElroy, respondent.

Case overruled. The case of *The United States*v. *McMroy, ante,*237, deciding that an appeal from the district court, in a case arising under the laws of the United States and perfected according to the requirements of the Civil Practice Act, was irregular and unauthorized, is hereby overruled.

Construction oe Organic *Act*— ninth *section —appeals—in ail cases —“same as in other*casetf’— *different jurisdictions.*The ninth section of the Organic Act of the Territory allows appeals in *all*cases from the final decision of the district court to the supreme court, under such regulations as may be prescribed by law. Appeals being allowed in cases wherein the district court exercises the jurisdiction of the United States district and circuit courts, “the same as in other cases,” this must, of necessity, refer to"Territorial cases, and hence the Civil Practice Act applies to every class of cases that may arise under any jurisdiction the court can exercise.

Embezzlement *—fiduaia/ry capacity*— *conversion*— *direct averments.*To constitute the crime of embezzlement, the elements of the fiduciary relation and the conversion are essential, and each must be covered by direct aver-ments and not left to implication, or the indictment will be demurrable.

The original case is reported, *ante,*237.

M. C. Page, United States District Attorney, for appellant.

Sharp & Napton, for respondent.

Wade, C. J.

This cause is before us on motion for rebearing. The action is one arising under the laws of the United States,- *495and tbe appeal to this court was taken and perfected in pursuance of tbe Territorial practice under tbe Practice Act. In tbe decision rendered, *ante,*237, it was beld that tbe Territorial practice regulating appeals was inapplicable to the case, and that tbe appeal should have been taken, in pursuance of tbe laws of tbe United States regulating appeals, from tbe circuit courts to tbe supreme court. Tbe decision does not seem to have been well considered, and tbe reasons for it are unsatisfactory. We have therefore bad tbe case again under advisement.

Tbe Organic Act of tbe Territory, after declaring that tbe supreme and district courts respectively shall possess chancery and common-law jurisdiction, provides that “ writs of error, bills of exceptions and appeals shall be allowed in all cases, from tbe final decisions of said district courts to tbe supreme court, under such regulations as may be prescribed by law. Organic Act, § 9.

Under tbe authority herein granted, tbe legislature, in adopting tbe Code of Civil and Criminal Procedure, provided for and regulated tbe mode of taking appeals from tbe district to tbe supreme court. Tbe same section of tbe Organic Act then provides : “And each of tbe said district courts shall have and exercise tbe same jurisdiction in all cases arising under tbe constitution and laws of tbe United States, as is vested in tbe district and circuit courts of tbe United States; * * * and writs of error and appeal in all such cases shall be made to tbe supreme court of said Territory, *the same as vn other cases.”*

Difference of opinion has arisen as to tbe application of the phrase, “ tbe same as in other cases.” What other cases are referred to ? Tbe solution of this question will determine whether appeals from tbe district courts to'the supreme court of tbe Territory, in causes arising under tbe constitution and laws of tbe United States, shall be taken, in pursuance of tbe Territorial practice, as established in tbe Practice Act, or whether such appeals shall be taken, in such cases only, and in tbe manner provided for appeals, from tbe circuit courts of tbe United States to tbe supreme court.

It will be seen that tbe section of tbe Organic Act provides first for appeals in *all*cases tried in the district court to tbe supreme court; and no construction should be put upon tbe *496language of tbe section tbat defeats tbe right of appeal in any ease or in any class of cases. Tbe section then provides for appeals in cases arising under tbe laws of tbe Territory; then enlarges the jurisdiction of tbe Territorial district courts so as to authorize such courts to bear and determine all causes arising under tbe constitution and laws of tbe United States; and then provides tbat appeals in such cases shall be made to the supreme court of tbe Territory, “tbe same as in other cases.” Tbe only other cases in which tbe section attempts to direct in what manner appeals shall be taken are cases arising under tbe laws of tbe Territory, and it follows, therefore, tbat tbe phrase “ other cases ” refers to Territorial cases.

Having provided for appeals generally, and then directing tbat appeals in certain specified cases shall be taken the same as in other cases, tbe particular appeals authorized must fall within tbe provisions of tbe general rule.

It is evident tbat tbe phrase “ other cases ” does not refer to appeals from tbe circuit courts of the United States to tbe supreme court, for such appeals are only allowed in certain cases and never in criminal cases.

Having given tbe right of appeal absolutely and without exception, in all cases tried in tbe Territorial district courts, tbe term “other cases” cannot refer to appeals from tbe circuit courts of tbe United States, for no appeal can be taken in that court *in any criminal case.*

It has been decided tbat tbe supreme court of tbe United States possesses no appellate jurisdiction in any form in criminal cases, no such power having been confided to it by congress. *United States*v. More, 3 Cranch, 159; *Ex parte*Kearney, 7 Wheat. 38; *Ex parte Watkins,*3 Peters, 193.

There is no statute of the United States giving a writ of error to revise tbe judgments of tbe district and circuit courts in criminal cases, and consequently no bill of exceptions can lawfully be allowed. It is only by means of a certificate of disagreement in opinion, upon a question of law between tbe judges of a circuit court, tbat a criminal case can be brought under tbe cognizance of tbe supreme court. Conkling’s Treatise, 635; *Ex parte*Gordon, 1 Black, 503.

*497It follows, therefore, that if the Organic Act only intended to provide for sneh appeals from the Territorial district courts to the supreme court, in cases arising under the constitution and laws of the United States as are authorized and provided for from the circuit courts of the United States to the supreme court, then the right of appeal from the district courts of the Territory to the supreme court, in all criminal cases arising under the laws of the United States, is entirely cut off, and no such appeal can be had either by the United States or the defendant. The Organic Act does not admit of any such construction, and its proper interpretation is, that appeals in cases arising under the laws of the United States shall be taken in the same manner as appeals in cases arising under the laws of the Territory.

The appeal having been taken in pursuance of the laws of the Territory, the case was improperly dismissed, and the judgment of dismissal is set aside.

The indictment charges that the defendant, being a postmaster and an officer of the United States, charged with the safe-keeping, transfer and disbursement of public moneys, unlawfully and fe-loniously converted to his own use and embezzled a portion of the said public moneys intrusted to him for safe-keeping, transfer and disbursement, to wit, etc.

In order to constitute the crime of embezzlement, the property embezzled must have been received in the capacity of clerk, servant or agent of the owner and then converted.

In this indictment it does not appear save by implication in what capacity the defendant received the money. This is not sufficient. The charge should be direct. The demurrer was properly sustained.

*Judgment aff/rmed.*