State v. Tracey

• Decision Date: 20 February 1891
• Parties: STATE v. TRACEY.
• Court: Maryland Court of Appeals

21 A. 366

73 Md. 447

STATE v. TRACEY.

Court of Appeals of Maryland

February 20, 1891

Error to circuit court, Anne Arundel county.

Argued before ALVEY, C.J., and ROBINSON, BRYAN, MCSHERRY, BRISCOE and IRVING, JJ.

Atty. Gen. Whyte and James M. Munroe, for the State.

James Revell and John Ireland, for appellee.

IRVING J.

The appellee was indicted for embezzlement under section 75, art 27, 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 of 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 said indictment did not allege that the money charged to have been fraudulently embezzled by the traverser, as set out in the indictment, was the money and property of the 'Curtis Creek Mining Furnace & Manufacturing Company,' nor did said indictment allege any ownership of the said money charged to have been fraudulently embezzled as set out in said indictment whereas, the court ought to have overruled the demurrer, and ought to have sustained the indictment as sufficient in law, because it is not necessary to allege the ownership of the property charged to have been fraudulently embezzled, as set out in the indictment." A single question is presented for our decision, to-wit, whether, in an indictment under 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 offense 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 offense 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 Geo. III. c. 85, and 7 & 8 Geo. IV. c. 29, § 47. In defining the offense of embezzlement by servants, employes, and agents, those statutes use the language which ours has copied, "shall be deemed to have feloniously stolen the same from his master or employer." If this makes the offense larceny, then an indictment for that offense should contain all the material averments which are necessary to be proven in order to convict, and nothing must be left to intendment. 1 Archb. Crim. Pl. & Pr. (8th Ed.) 265; 1 Bish. Crim. Proc. §§ 505, 509. That these statutes do make the offense larceny, and that as a consequence thereof it is necessary to allege the ownership of the property...