No. 21886 | Miss. | Mar 15, 1921
delivered the opinion of the court.
Appellant was indicted in the circuit court of Union county for embezzlement. There was a demurrer to the indictment, which was overruled, and from a conviction and penitentiary sentence, this appeal was prosecuted.
The indictment charged that — Appellant, “in the county aforesaid,, and within the jurisdiction of this court, having received of Mathew Howell seven hundred francs in trust, and to be exchanged for American money and as the agent of said Howell holding the same in trust to be delivered in New Albany, Miss., did then and there unlawfully, willfully, fraudulently, and feloniously appropriate, convert to his own use, and embezzle the said seven hundred'francs, or the money received therefor, of the value of one hundred forty dollars good and lawful money of the United States. After having accepted the same as aforesaid, in trust as
At the conclusion of the testimony the indictment was amended by striking out the word “or” and inserting the word “and” between’ the words “seven hundred francs” and the words “the money received therefor.”
Upon the trial, Mathew Howell, the complaining party, and chief witness for the state, testified that, while he and appellant were in France during the World War, he delivered to appellant seven hundred francs under an agreement that appellant ivould keep them for him until they arrived at New Albany, Miss., and that the francs, of the value thereof, were to be delivered to Howell after they reached New Albany. Under this testimony the court only acquired jurisdiction by reason of the last clause of section 1402, Code of 1906 (Hemingway’s Code, section 1157), this section being as follows:
“When an embezzlement is cofiimitted it may be prosecuted in the county in which the money or property, or some part thereof, was received or converted by the accused, or in the county in which he w;as under obligation to' pay over the funds or to deliver up. the property.”
In order that this indictment may be brought under this section and may accord with the proof required to sustain the charge, it is necessary that the indictment allege the time when, as well as the place where, the defendant was under obligation to pay over or deliver up the funds, and, if on demand, that demand has been made and payment refused, and, since this indictment omits these necessary allegations, the demurrer should have been sustained. The cause is therefore reversed, the demurrer sustained, and defendant held on his bond to await the action of another grand jury.
Reversed and remanded.