72 Ala. 272 | Ala. | 1882
The indictment is for the embezzlement of an ox, or steer, which the defendant is alleged to have fraudulently converted to his own use, contrary to the provisions of section 4377 of the present Code (of 1876).
We think the court did not err in charging the jury that the
The objection to the indictment, however, is well taken. The gist of the crime charged is embezzlement by an agent, of property which has come into his possession by virtue of his employment, or agency. — Code, § 4377. The indictment should, therefore, have alleged that the defendant was the servant or agent of some named principal.—Code, 1876, p. 997, Form No. 50; Watson v. State, 70 Ala. 13; Hinderer v. State, 38 Ala. 415; Lowenthal v. State, 32 Ala. 589.
It was unnecessary, perhaps, for the indictment to have alleged the ownership of the property embezzled, as a fact separate and distinct from the necessary inference of such ownership, based on the relation of principal and agent, and on the further fact that the property had come into the agent’s or servant’s possession by virtue of his agency' or employment. The safer practice, however, is always to aver such ownership, varying the averments in several counts so as to meet the possibilities of a variance. But, where ownership is averred in such cases, it becomes material, and must be proved.
The defendant, under the proof made, was not the agent or servant of Stickney, who was alleged in the iridictment to be the owner of the property embezzled. Thomas had received the horse from Stickney, with the understanding that he was to pay him '(Stickney) forty-five dollars, or its equivalent. Thomas traded the horse for other property, including the ox or steer in question, which latter animal was placed in defendant’s custody, to be by him delivered to Stickney. The defendant was selected by, and acted for Thomas, who was, therefore, his principal. If the animal had been destroyed by the malice of the agent, or lost through his negligence, it is plain that the loss would be Thomas’, not Stickney’s.—Hinderer’s case, 38 Ala. 415, supra. If Stickney had recognized
The judgment must be reversed, and the cause remanded. In the meanwhile the defendant will be retained in custody, until discharged by due course of law.