80 P. 320 | Ariz. | 1905
The appellant was indicted, in conjunction with one J. B. Woodward, for embezzlement, alleged in the indictment to have been committed as follows, to wit: “The said J. B.Woodward and Bissell Thomas on or about the thirteenth day of July, A. D. 1904, and before the finding of this indictment, at the county of Maricopa, territory of Arizona, being then and there the agents of one H. W. McDonald, did by virtue of their employment receive and take into their possession and control a large sum of money, to wit, one thousand and fifty-two dollars and fifty cents, in money of the personal property of the said H. W. McDonald, their said principal, and afterwards, to wit, on the fifth day of October, 1904, at said county of Maricopa, territory of Arizona, did willfully,
The first assignment of error urges that the court erred in overruling the demurrer of the defendant Bissell Thomas to-the indictment, upon the grounds, — 1. That said indictment does not substantially conform to the requirements of sections 824, 825, and 826 of the Penal Code of the territory of Arizona; and 2. That the facts stated in said indictment do not constitute a public offense. Section 826 of the Penal Code requires that the indictment must be direct and certain as it regards the offense charged, and the particular circumstances of the offense charged, when they are necessary to constitute a complete offense. The language employed in the indictment shows that the indictment was drawn under section 462 of the Penal Code, and attempts to charge the defendant with embezzlement as agent of H. W. McDonald.
We pass over the criticism by the appellant on the manner in which this agency was alleged, as that is not important in this case, because the allegation, as made, applied only to the thirteenth day of July, at which date the receipt of the money is charged; and, if it be conceded that the allegation
The indictment herein being considered, while it would be good against demurrer under a statute reading, “Every person who fraudulently appropriates to his own use any property of another which has come into his control or care by virtue of his employment as clerk, agent, or servant of such other person, is guilty of embezzlement,” does not state facts sufficient to constitute the offense of embezzlement under section 462 of our Penal Code, as above cited, for the reason that it fails to allege the relation of clerk, agent, or servant on the part of the defendant at the time the appropriation is charged to have been made, and therefore fails to charge that the fraudulent appropriation was made by a clerk, agent, or servant. This failure is fatal upon the demurrer urged in the trial court as shown in the' record, and the court erred in overruling the demurrer to the indictment on the grounds therein given. This determination renders unnecessary the consideration of the other points that have been presented by the appellant.
The judgment of the lower court is reversed and the case remanded.