People v. Howe

namely, the amount due to the insurance company on a net balance, consisting of numerous smaller sums of money, received at different times and in different places, from different persons and on different accounts. This will .not answer. Each specific act of embezzlement is a specific offense, and must be so charged with all necessary certainty and particularity, to enable the defendant to understand and prepare to meet the specific charge. It may be that if a servant should have, at one time, in his own possession, a gross sum belonging to his master, though received from different parties, at different times, and, having it all in possession, should then form the design to feloniously appropriate the gross sum, and do so, he might be indicted for embezzlement of the gross sum without specifying the sources from which received, or in any way undertaking to particularize the various amounts of • which it was composed. It is sufficient to say that the evidence in the case at bar makes out no such case. The principles, applicable to such an indictment are stated by Mr. Bishop, in his very elaborate and learned work on Criminal Law, as follows: “ On common-law principles the indictment, under the statute, must set out, specifically, some articles of property embezzled. An allegation that the prisoner took and received on account of his master divers sums of money, to wit: the sum of £10, and afterward embezzled the same, not being sufficient. In other words, the indictment must describe, according to the fact, some of the identical goods or money, so the evidence must establish the embezzlement of the specific articles, described.” % Bish. Grim. Law, § 374 and cases cited.

Certain statutory provisions have been made in England with a view to simplify the forms of indictment in such cases. See a reference to these statutes, 2 Bish., § 375, note 1. But, as stated by the author on common-law principles, a statute providing a simpler form of indictment does not change the nature of the offense, or diminish the quantity or modify the species of proof, and even now, in England, it will not suffice to show a genéral deficiency in account. Some specific sum must be proved to have been embezzled, the same as in larceny, some particular article must be proved to have been stolen. The Course adopted in the case at bar, subjects a party to be required to meet any number of distinct offenses under one count in the indictment, and to a conviction, if any one, of a hundred distinct offenses sought to be proved should be found to be established.

Therefore the counsel for the defendant was authorized to object, as he did, to the evidence tending to prove the receipt of various sums of money from various persons, at different times, and upon different accounts. The specific offense of embezzling the particular sum received from either of the witnesses, had not been charged in the indictment, nor was any kind of description or identification of any money embezzled attempted to be given. But a fundamental error, touching the merits of the case, which was committed in the court below, was in the various rulings, by which it was held that the defendant could be convicted of embezzlement on the facts as they appeared on the part of the prosecution. It is manifest that it was not understood, by the parties, that the specific and identical money received by the defendant, from time to time, from the various insured parties was to be handed over to the company, but it was to, and did, become a matter of account, and the prosecution is in fact for not paying over a balance of account. This is not the object, nor within the intent of the statutes, against embezzlement. Those statutes were passed to remedy a defect in the common law as regards the crime of larceny, it being held that a larceny must include a trespass, either actual or constructive, consequently if the property or money misappropriated came to the possession of a servant lawfully, in general, the subsequent misappropriation of it could only be treated as a breach of trust, and not punishable criminally. And it was to avoid the difficulty arising out of the lawful possession of the party sought to be punished, which prevented a conviction for larceny, that the new offense was created. The same title and right to receive the identical money must exist, in order to a conviction for embezzlement, as in the case of larceny. It has, therefore, been held, where the party receiving the money has a right to mix it with his own, being accountable for a balance, as in the case of an auctioneer (Commonwealth v. Stearns, 2 Metc. 343 ), or a newspaper collector (Commonwealth v. Sibly, 11 id. 64), that an indictment for embezzlement does not lie upon a misappropriation. However morally wrong it may be for a party to use money for his own benefit, which he is bound to pay over to another, it is not a criminal offense so long as it is a mere debt, no matter of how sacred a nature.

Since the facts in this case transpired, and in 1873 the legislature passed an act relative to the defalcations of agents of indurance companies, which, it may have been supposed, would render sfich

agents liable to be proceeded against criminally for not paying over a balance of account to their principals. Whether it will have such an effect it will be time enough to determine when the question arises.

The questions discussed hereinbefore were sufficiently presented, in various ways, by the exceptions taken on the trial; and we are of the opinion that it is clear the conviction cannot be sustained, and that the defendant cannot lawfully be convicted on the indictment and the evidence.

The conviction is therefore reversed, and the proceedings remitted to the court of general sessions of Yates county, with directions to discharge the prisoner.

Ordered accordingly.