73 Md. 447 | Md. | 1891
delivered the opinion of the Court.
The appellee was indicted for embezzlement under section 15, of Article 21 of the Code of Public General Laws. There were three counts in the indictment, and a demurrer was interposed to them, which the Circuit Court for Anne Arundel County sustained. The petition for removal of the record to this Court, as upon writ of error, avers as the ground of error, that the Court adjudged “the indictment to be insufficient in law, because the
A single question is presented for our decision, to wit, whether in an indictment under the section 75, of Article 27 of the Code, the ownership of the property or money embezzled, must be alleged to make the indictment good and sufficient in law to- sustain a conviction.
The contention of the State is, that the offence is statutory, and that having substantially followed the language of the statute, the indictment is good; and the appellee contends that the statute having declared the offender to have feloniously stolen, made the offence larceny, and consequently all the essential averments of a. good indictment for larceny must be found in this indictment, or it is bad.
This statute was enacted by chapter 310 of the Acts of the General Assembly of 1886. It is borrowed almost verbatim, from 39 George III, chapter 85, and 7 and 8 George IY, chapter 29, section 47. In defining the offence of embezzlement by servants, employes and agents, those statutes use the language which ours has copied, “Shall he deemed to have feloniously stolen the same from his master or employe. ’ ’
If this makes the offence larceny, then an indictment for that offence should contain all the material averments which are necessary to be proven in order to con
That these statutes do make the offence larceny, and that, as a consequence thereof, it is necessary to allege the ownership of the property, as contended for by the appellee in this case, has been expressly decided both in England and in this country. In McGregor’s Case, Leach on Crown Law, 938, the question was distinctly presented and decided on a motion to arrest a judgment upon an indictment which was defective in omitting to charge the ownership of the property. Judgment in that case was arrested. Much-stress has been laid, in argument, that this decision was rendered by only a majority of the Judges. If that was .the case, it has been acquiesced in and followed ever since. The statement that it was by a majority of the Court finds explanation in the fact that two of the Judges were not present at the final consultation where the conclusion was reached. In 2 East’s Grown Law, 578, it was said with reference to this case: a difference of opinion for a while prevailed, but on the 25th of .February, 1802, all the Judges, (except Lord Kenyon, C. J. and Rooke, J., who did not meet the other Judges in consultation,) were of opinion that the statute made the offence larceny, and that the indictment was bad in not alleging the ownership of the property.
In 2 Russell on Crimes, (9th Am. from 4th London Edition,) 464, that learned author says: “Except as section 71, of the 24 and 25 Vict., ch. 96, may have otherwise provided, it seems that the indictment ought to contain all the requisites of an indictment for larceny at common law.” This statement immediately follows his citation of the decision of the Court of King’s Bench that counts for embezzlement and larcfeny could be joined, because Lord Ellenbobough, Chief Justice said, that the statute
Judgment affirmed.
