127 Iowa 286 | Iowa | 1905
In the count charging embezzlement, it seems to have been necessary to include the allegation that the property had been stolen, apparently for that the act of Parliament, in creating the offense, designated it as larceny. Com. v. Pratt, 132 Mass. 246; State v. Fricker, 45 La. Ann. 646 (12 South. Rep. 755). This did not relieve the pleader, however, from stating the facts constituting embezzlement; and, in the absence of a statute authorizing conviction under indictment for larceny, the courts have generally, held that the facts constituting the crime must be stated with such particularity as to identify it under the statute defining embezzlement. “Bishop on Statutory Crimes, section 422. But in England, as well as in many of the States of this country, legislation has put the bailee in possession in the same attitude as servants having the naked custody of property, and authorized conviction under a charge of larceny. Bishop, Statutory Crimes, section 420. But in Texas, where the Constitution confers the right “ to demand the nature and cause of the accusation,” such a statute was condemned as an invasion of the fundamental law. Huntsman v. State, 12 Tex. App. 619. See also, Hall v. State, 3 Cold. (Tenn.) 125. These decisions are in point, as section 5282 of the Code contains a like provision. To constitute larceny, a trespass is essential, while in embezzlement this is not necessary, but a fiduciary relation must
Owing to the error mentioned, the judgment is reversed and the cause remanded.