State v. . GraceState v. . Grace
The defendant was convicted of embezzlement. The indictment, which was drafted conformably to C. S., 4268, chargеs that the *281 defendant was tbe agent, consignee, сlerk, employee, and servant of a charitable organization known as Tbe House of Prayer;' that be was entrusted with tbe receipt of money for thе organization; and that be received and bad under bis care tbe sum of five thousand dollars, which be embezzled and fraudulently converted to bis own use. Tbe evidence includes a number of transactions, but tbe cirсumstances on which tbe State chiefly relies, granting for tbe immediate purpose that they are sustainеd by tbe testimony, are these: (1) tbe fact that tbe originаl deed to tbe Charlotte property was takеn in tbe defendant’s name; (2) that tbe defendant’s use of $385 for tbe purchase of a tent in Norfolk was unauthorized; (3) that tbe defendant’s use of $1,200 for the purchase of a lot in Washington for Tbe House of Prayer was not authorized.
Tbe defendant contends that tbe proof in respect to these matters is not comprеhended by or included in tbe indictment; that if tbe defendant is guilty of any offense it is a breach of that portion of C. S., 4270, not embraced in tbe bill of indictment, and that there is a fatal variance between tbe allegation and tbe proof. Tbe Assistant Attorney-General, pursuant to bis uniform frankness, admits that tbe proof does not sustаin tbe specific charge on which the defendant is prosecuted, and that the alleged varianсe is fatal.
The crime of embezzlement is of statutоry origin, and the principle is established that when the wоrds of a statute are descriptive of the offense, the indictment should follow the language and exрressly charge the offense described.
S. v. Maslin,
The defеndant moved in arrest of judgment, but the motion was properly denied for the reason that a criminal prоsecution may be arrested only for some error or defect appearing on the face of the record.
S. v. McKnight, ante,
259;
S. v. Lewis,
Reversed.