State v. Tracey

Irving, J., delivered the opinion of the Court. The appellee was indicted for embezzlement under section 15, of Article 21 of the Code of Public General Laws. There were three counts in the indictment, and a demurrer was interposed to them, which the Circuit Court for Anne Arundel County sustained. The petition for removal of the record to this Court, as upon writ of error, avers as the ground of error, that the Court adjudged “the indictment to be insufficient in law, because the ⁴⁴⁸ said indictment did not allege that the money charged to have been fraudulently embezzled by the traverser, as set out in the indictment, was the money and property of the ‘ Curtis Creek Mining Furnace and Manufacturing Company,’ nor did said indictment allege any ownership of the said money charged to have been fraudulently embezzled as set out .in-said indictment; whereas, the Court ought to have overruled the demurrer, and ought to have sustained the indictment as sufficient in law, because it is not necessary to allege the ownership of the property charged to have been fraudulently embezzled as set out in the indictment.” A single question is presented for our decision, to wit, whether in an indictment under the section 75, of Article 27 of the Code, the ownership of the property or money embezzled, must be alleged to make the indictment good and sufficient in law to- sustain a conviction.

The contention of the State is, that the offence is statutory, and that having substantially followed the language of the statute, the indictment is good; and the appellee contends that the statute having declared the offender to have feloniously stolen, made the offence larceny, and consequently all the essential averments of a. good indictment for larceny must be found in this indictment, or it is bad. This statute was enacted by chapter 310 of the Acts of the General Assembly of 1886. It is borrowed almost verbatim, from 39 George III, chapter 85, and 7 and 8 George IY, chapter 29, section 47. In defining the offence of embezzlement by servants, employes and agents, those statutes use the language which ours has copied, “Shall he deemed to have feloniously stolen the same from his master or employe. ’ ’ If this makes the offence larceny, then an indictment for that offence should contain all the material averments which are necessary to be proven in order to con ⁴⁴⁹ vict; and nothing must be left to intendment. 1 Archbold Cr.

Pl. & Pr., (8th Ed.,) 265; 1 Bishop’s Grim. Prac., secs. 505, 509. That these statutes do make the offence larceny, and that, as a consequence thereof, it is necessary to allege the ownership of