DAYIS, J.
The indictment under which the defendant was convicted charged: “That the said Justin T. Hinds, at the county of Yavapai and territory of Arizona, on or about the 22d day of September, 1902, then and there being and acting as the manager of the Prescott Realty Company, a •corporation, and as such.manager, and by virtue of his said employment, being then and there intrusted by the State of Arizona Mines Corporation, a corporation, with a certain check, and receiving and having said check in his possession by virtue of his said trust, to wit, a cheek for the sum of *376seven hundred and thirty-one dollars and sixty cents, of the value of seven hundred and thirty-one dollars and sixty cents, in lawful money of the United States; said check being then and there the properly of the said State of Arizona Mines Corporation, and received by the said Justin T. Hinds, as aforesaid, in the name and on account of the said State ■ of Arizona Mines Corporation; and the said defendant, Justin T. Hinds, having thereafter, on the said 22d day of September, 1902, cashed the said check at the Bank of Arizona, in Prescott, Arizona, and received the proceeds thereof, to wit, the sum of seven hundred and thirty-one dollars and sixty cents, into his own possession and upon his own account, did then and there unlawfully, feloniously, and fraudulently embezzle and convert to his own use, and not to any use or purpose in the due and lawful execution of his said trust, all of the proceeds of said check, to wit, the sum of seven hundred and thirty-one dollars and sixty cents, contrary to the form, force, and effect of the statute,” etc. There was a demurrer to the indictment, and the overruling of the demurrer is assigned as error. It is insisted that the indictment is not “direct and certain,” either as regards “the offense charged,” or “the particular circumstances . . . necessary to-constitute a complete offense,” and also “that the facts stated do not constitute a public offense.” It is conceded that the prosecution in this case is based upon section 458 of the Penal Code, and the jury was so instructed by the court. The section referred to reads as follows: “Every officer of this territory, or of any county, city or other municipal corporation or subdivision thereof, and every deputy clerk, or servant of any such officer, and every "officer, director, trustee, clerk, servant or agent of any association, society or corporation (public or private) who fraudulently appropriates to any use or purpose not in the due and lawful execution of his trust, any property which he has in his possession, or under his control by virtue of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, is guilty of embezzlement.” The next following four sections define how and under what circumstances embezzlement may also be committed by persons occupying various other relations of trust and confidence, such as carrier, trustee, banker, merchant, broker, attorney, agent, assignee in trust, executor, adminis*377trator, collector, bailee, tenant, lodger, clerk, and servant. Our present purpose, however, requires only the consideration of section 458, and a determination as to whether or not the indictment sufficiently describes an offense thereunder. “This section,” it has been said by this court, “was meant to apply to persons occupying fiduciary relations, such as public officers, and officers and agents of corporations, public and private. To sustain a conviction under this section, three facts must be shown: (1) The trust relation; (2) the possession or control of property by virtue of the trust; and (3) the fraudulent appropriation of the property, not in the due and lawful execution of the trust.” Territory v. Meyer, 3 Ariz. 199" court="Ariz." date_filed="1890-04-19" href="https://app.midpage.ai/document/territory-of-arizona-v-meyer-6472821?utm_source=webapp" opinion_id="6472821">3 Ariz. 199, 24 Pac. 183. Embezzlement was not an offense at common law, but was created by statute to meet a defect in the law of larceny, which required a trespass. Mr. Bishop calls it “a sort of statutory larceny committed by servants and other like persons where there is a trust reposed, and therefore no trespass, so that the act would not be larceny at the common law.” 1 Bishop on Criminal Law, see. 567. Being statutory, it is always within the power of the legislature to' declare what acts shall constitute the crime. The trust relation referred to in section 458, as it applies to the case before us, is that which exists between the agent and the corporation. The property which, in the contemplation of that section, may become the subject of embezzlement, is primarily the property of the corporation—property which, having come into his possession or control by virtue of said trust relation, the agent can be required to account for to the corporation. It must be property in which the corporation has at least some qualified ownership. The statute under consideration is one which “fully, directly and expressly, without any uncertainty or ambiguity, sets forth all the elements necessary to constitute the offense,” and the pleader could have safely and sufficiently charged the crime in the language of the statute. People v. Mahlman, 82 Cal. 585" court="Cal." date_filed="1890-01-27" href="https://app.midpage.ai/document/people-v-mahlman-5444403?utm_source=webapp" opinion_id="5444403">82 Cal. 585, 23 Pac. 145; People v. Ward, 134 Cal. 301" court="Cal." date_filed="1901-10-11" href="https://app.midpage.ai/document/people-v-ward-3302413?utm_source=webapp" opinion_id="3302413">134 Cal. 301, 66 Pac. 372; People v. Cobler, 108 Cal. 538" court="Cal." date_filed="1895-08-21" href="https://app.midpage.ai/document/people-v-cobler-5447766?utm_source=webapp" opinion_id="5447766">108 Cal. 538, 41 Pac. 401; United States v. Carll, 105 U. S. 611, 26 L. Ed. 1135. He could also have used other words conveying the same meaning. Pen. Code, see. 832. But there is a noticeable departure from the phraseology of the statute in the indictment which is before us. In effect, it charges that the *378defendant, while acting as the manager of the Prescott Realty Company, a corporation, was intrusted by the State of Arizona Mines Corporation with a certain check, the proceeds of which he embezzled. It is averred that the check was intrusted to the defendant by virtue of his said employment, but it is not alleged what, if any, interest the Prescott Realty Company had in the check, nor that the defendant received it for or on account of his principal. On the contrary, there is the express averment that the check was the property of the said State of Arizona Mines Corporation, and was received by the defendant in the name and on account of said last-mentioned corporation. For whom then was the defendant acting in a fiduciary capacity, according to these allegations? To which corporation was he accountable for the conversion of the property? Or, applying a test plainly warranted’ by the statute, to whose demand for the return of the property would the defendant comply in order to avoid criminal liability? If the answer must be read in the averments of the indictment, we should not be able to say it was the Prescott Realty Company. The trust relation under which the' property was misappropriated, being an essential element of the crime, was required to be clearly and distinctly set forth. It is not so alleged here, and, because the indictment is not “direct and certain” in this regard, it does not conform to the requirements of the code. The judgment will accordingly be reversed, with directions that the district court sustain the demurrer to the indictment.
Doan, J., concurs.
KENT, C. J. I do not concur in the opinion of the court in this case.