p. 78gave some evidence not materially affecting the case made by the prosecution. The defendant insisted that the indictment was bad, and also that no offence-had been proved. The court overruled the objection to the indictment, and instructed the jury that the defendant was the clerk or servant of Snyder for the collection of the money due him from Darrow, within the meaning of the revised statutes respecting embezzlement, (2 R. S. 678, § 59,) and that the evidence was sufficient to sustain the count upon which t-he conviction was sought, leaving it however to them to say whether on the whole he was guiltv or not. The defendant excepted to the charge. The jury found him guilty.
B. F. Potter, for the defendant.
1. The count on which the conviction was had does not charge the defendant with any offence. An agent is not within the provisions of the statute. 2. The defendant did not, upon the evidence, sustain such a relation to Snyder, as to make the act of appropriating the money of the latter to his own use an act of embezzlement. An officer, such as a sheriff or constable, an attorney at law or a collecting agent, is not a servant of the party whose business he transacts; the money received under such agencies is not the specific money of the employer, but the agent upon receiving it becomes the debtor of the one entitled to it. (2 Russ. on Crimes, 124 and seq.; id. 1062, 1066; 4 Taunt. 258, 284 ; 3 Ch. Cr. L. 918, 936.)P. Potter, (district attorney,)
for the people. The indictment, taking the whole count together, is sufficient. The word agent used in the early part of the count is explained by what follows, in which it is shown that a servant is meant.Under the circumstances, the defendant was a servant of Snyder, and the money when received was that of the employer. He did not receive it as a constable, but under an unofficial employment, which in its effect created the legal relation of master and servant. (The People v. Sherman,
p. 7910 Wend. 298 ; The People v. Hennessey, 15 id. 147; The People v. Dalton, id. 581.)As the defendant was found guilty on the first count of the indictment only, the others having been abandoned by the public prosecutor, that count alone is now in question. It is not pretended on behalf of the people that the first count charges any offence at common law, but it is said to be sustainable on the statute as to embezzlement. (2 R. S. 678, § 59.) The first clause of this section of the statute, and which alone can be supposed to have any bearing on the case in hand, is, in terms, limited to clerks and servants, and has nó application to any other class or description of persons. But the first count of this indictment charges that the defendant as the agent of Snyder, collected and received the money alleged to have been embezzled, and not that it was collected and received as his clerk or servant. Nor is the averment that the money was received as agent, at all changed or qualified by the subsequent allegation that it came to the possession of the defendant “ by virtue of his said employment as such servant of the said”-—“ Snyder, and while he was such servant as aforesaid.” This only amounts to an allegation that the money was received by the defendant as such servant, as an agent is or may be, and not that he in fact received it as the servant of Snyder.
The term agent is nomen generalissimum, and although it includes clerics and servants, who are properly agents of their employers and masters, it is by no means restricted to such persons. (Paley on Agency, by Dunlap, p. 1 and note.)
An indictment upon a statute must state all such facts and circumstances as constitute the statute offence, so as to bring the party indicted precisely within the provisions of the statute. ( 1 Chit. Cr. L. 281 , 282, 283, ed. of 1841; Archb. Cr. PL. 50, ed. of 1846.) If the statute is confined to certain classes of persons, or to acts done at some particular time or place, the indictment must show that the party indicted, and the time and place when the alleged criminal i cts were perpetrated,
p. 80were1 such as to bring the supposed offence directly within the-statute. In conformity with these principles it will be seen' that the precedents of indictments on the English statutes as to embezzlement, and which like the clause of the revised statutes referred to, apply in terms to clerks and servants only, uniformly allege in direct terms, that the person indicted was. such clerk- or servant. ( 3
Chit. Cr. L. 962 ;. 3-
Maule & Sel. 539;
Archb. Cr. Pl. 275.) These are precedents for indictments on 39
Geo. 3,
ch. 85, and 7
and 8 Geo.-4,
ch. 29. But indictments on 52
Geo. 3,
ch. 63, which makes certain acts of-brokers, agents and others, criminal offences, also allege that the party indicted was a broker, agent or other particular person, as the case might be. ( 3
Chit. Cr. L. 967 .) These precedents are in conformity with the settled rule of law on this, subject; the court below* therefore erred in holding that the first count charged an offence within the section of the revised statutes to which reference has been made. On this ground alone a new trial would be proper, although I entertain no doubt that the defendant, upon the evidence in the case; was neither a servant nor clerk of Snyder, within the- true meaning, of this section of the statute; and therefore had the indictment been such as the law requires, the defendant could, not have been convicted of embezzlement. Whether either of the other counts in this indictment can be sustained, I shall not undertake to determine. The conduct of the defendant,if the witnesses are to be credited, and nothing appears in the case as presented to render their statements at all questionable,; was grossly fraudulent, and in some respects of the most aggravated criminality. But whether this indictment is adapted to any offence which can be proved, may be determined on- another trial.
New trial ordered.