People v. Cox

40 Cal. 275

• Court: California Supreme Court
• Decided: October 15, 1870
• Docket: No. 2,588
• Status: Published

Opinion

Wallace, J.,

delivered tbe opinion of the Court:

The indictment in this cause, found under Section 70 of the Criminal Code, avers that Cos is guilty of the crime of embezzlement, in that he, being at the time a clerk in the employment of a certain business firm, received in the course of his employment “certain money” belonging to his principals, “and did willfully, and unlawfully and feloniously embezzle and convert the sum of $800 of the said money so received to his own use, with intent to steal the same,” etc.

It will be seen that there is not contained in the indictment the slightest designation of the character or description of the money received or embezzled, it is not even averred to have been the lawful money of the United States, or made or issued by any government or sovereignty whatever.

In an indictment for larceny of money it is settled here that the particular denomination and description of the money stolen should be set forth; and, though this Court held in People v. Jim Ti (32 Cal. 61), that a description of the money as being “ gold and silver coin * * * of the value of $235.75” was sufficient, where no special demurrer to the indictment was interposed, I apprehend that the omission to state any description or character whatever of the stolen money is a fatal objection, whenever presented during the progress of the cause.

An indictment for the crime of embezzlement ought to state the description of the property embezzled with the same particularity as is required in an indictment for larceny. For obvious reasons it may be difficult to give such a description of property embezzled, particularly where the offense is committed by a person in the course of a continuous employment, as a clerk, cashier, or the like; but I find nothing in the law authorizing us to make any distinction upon this point between offences of larceny and embezzlement. It would promote the ends of justice, perhaps, if a statute should be passed to correct the law in this particular, as has been done in England, where it is enacted by Stats. 7 and 8, Geo. IY., Cb. 29, Sec. 48, that “it shall be sufficient to allege tbe embezzlement to be' of money, without specifying any particular coin or valuable security,” etc.

Judgment reversed and cause remanded.