71 Miss. 90 | Miss. | 1893
delivered the opinion of the court.
The pleader has encumbered — perhaps obscured — his indictment with a particularity of statement which was unnecessary. He has ventured upon averments which were needless, and may make his prosecution more difficult of successful accomplishment than if he had contented himself in stating the charge laid in the usual brief, simple manner. The evidences of the supposed guilt of the defendant were improperly inserted in the pleading, but this does not vitiate the indictment. All the allegations as to receiving certain sums from certain persons or corporations, and of the failure of defendant to enter the proper credits in the accounts of such persons or corporations with the Standard Oil Company, as well as the conclusion that the intent was to injure these persons or corporations, may be treated as surplusage, and yet we shall find a sufficient charge of embezzlement contained in the pleading. We shall find that the indictment charges that the defendant was the clerk or servant of the Standard Oil Company, and authorized to collect and receive money from its customers and other persons having dealings with it; that by virtue of his said employment he took into his possession and received for his principal $3,516.35, and that he feloniously made way with and embezzled the same, with intent to defraud his employer and to the damage of the Standard Oil Company. These were the essential ingredients of the crime charged, and if the pleader has inserted more unnecessarily, whereby he may ultimately burden his prosecution, it is impossible for us to see either how the de
There are not two distinct offenses charged in either count or both counts. The defendant is not, in either count, indicted for the embezzlement of moneys collected by him as. the agent or servant of the named customers of his principal. He is clearly charged, on any fair construction of the whole pleading, with the embezzlement of the money of the Standard Oil Company, whose clerk and servant he was.
We do not think that it can be said that the indictment seeks to make the guilt of the accused depend upon his. alleged failure to enter the proper credits in the several accounts of his employer’s customers. That unnecessary averment is contained in the indictment, but that is no ingredient of the crime charged.
The indictment contains all necessary to be charged, and some superfluous matters in addition. But utile per inutile non vitiatur.
Reversed.
