Grantt, P. J.
Three main propositions are urged upon the part of defendant for a reversal. First, that the court erred in instructing the jury that, if they found from the evidence that defendant was the clerk of Cavers & Thomas, and was at the time sixteen years of age, and, without the assent of said firm, converted and embezzled to his own use any of the money or property of said firm as described in the various counts of said indictment, of less value than $80, within one year before the finding of the indictment, they would find him guilty as charged in said counts, that is to say, of larceny, and assess the statutory punishment for petit larceny. Second. That tlje general verdict of guilty of petit larceny was not responsive to either count upon wljich he was tried, and was insufficient to sustain the [646]*646judgment or sentence of the court. Third. That the conviction of defendant of larceny under an instruction for embezzlement and under evidence tending to prove embezzlement was in defiance of the rights guaranteed defendant by sections 12 and 22, of the bill of rights in the constitution of Missouri, 1875.
As before stated, the indictment is for grand larceny in the ordinary and usual form, charging that defendant did take, steal and carry away the goods and moneys of Cavers & Thomas. The fourteen counts all allege different and distinct larcenies. That the court by its second instruction authorized the jury to find the defendant guilty of petit larceny, if the evidence showed him guilty of embezzling money or goods of his employers under the value of $30, is apparent from the instruction.
Under the practice in criminal cases at common law and in this state prior to 1855, no such question as this could have arisen. It was elemental law that the defendant could only be tried for the offense with which he was charged in the indictment. It mattered not if he was guilty of all other crimes In the category, unless he was found guilty, beyond a reasonable doubt, of the one preferred against him, the jury was bound to acquit him. In 1851, the British parliament passed an act of which section 3947, of the Revised Statutes, 1889, is a substantial copy. In 1855, this section appears upon the statute books of this state for the first time. Said section reads as follows:
“ Conviction lawful for another offense, when. — If, upon the trial of any person indicted for embezzlement, it shall be proved that he took the property in question in any such manner as to amount in law to larceny, he shall not, by reason thereof, be entitled to be acquitted, but the jury shall return as their verdict that such person is not guilty of embezzlement, but is guilty of larceny, and, thereupon, such person shall be liable to bé [647]*647punished in the same manner as if he had been convicted upon an indictment for such larceny, and, if upon the trial of any person indicted for larceny it shall be proved that he took the property in question in any such manner as to amount in law to embezzlement, he shall not, by reason thereof, be entitled to be acquitted, but the jury shall return as their verdict that such person is not guilty of larceny but is guilty of embezzlement, and, thereupon, such person shall be liable to be punished in the manner as if he had been convicted upon an indictment for such embezzlement,; and no person so tried for embezzlement or larceny as aforesaid shall be liable to be afterward prosecuted for larceny •or embezzlement upon the same facts.”
This section came before the court of criminal -appeal in England, composed of Chief Baron Pollock, Judges Wightm an and Cresswell and Barons Martin and Watson, in 1857, for the first time, in Regina v. Gorbutt, 1 Dearsley & Bell’s Crown Cases, 166. The prisoner was indicted as a servant for stealing three hundred pounds, the property of his master. The evidence tended to show embezzlement alone, and not larceny. The jury found a general verdict of guilty. He appealed. ‘The court of appeal reversed the conviction and said : ‘‘Now we think there is abundant evidence of embezzlement, but not evidence of stealing ; and, although, under the clause in the recent act of parliament, a prisoner indicted for stealing may be convicted of embezzlement, yet he cannot be convicted of stealing if there is only evidence of embezzlement; therefore, we think the verdict was not warranted by the evidence, and the conviction must be reversed.” Tested by this construction of this statute where it originated, the second .instruction given for the state is erroneous. State v. Baker, 6 Texas App. 844.
The indictment in its fourteen counts charged lar-ceny alone. Now, the court did not tell the jury, in rthe second -instruction for the state, that, if they [648]*648found the defendant guilty of embezzlement as therein defined they would return he was not guilty of larceny, but guilty of embezzlement, but in the teeth of the statute told them that, if they found him guilty of embezzlement, they would return a verdict of guil ty of larceny. The legislature while ignoring the provision of the constitution, requiring that before one could be convicted of a felony he must be indicted by a grand jury for that particular felony and not another and distinct offense, were at least consistent enough to require the defendant to be convicted of the offense of which the evidence showed him guilty, but this instruction permitted the jury to try this man for an offense not charged in the indictment, on evidence not supporting the indictment, and yet find him guilty of the charge in the indictment.
Without such a statute as section- 3947, under an indictment for larceny, the defendant could be convicted of larceny or nothing; but our statute interposes here and says that, although innocent of the charge in the indictment, the defendant may be convicted of a different crime that he may have committed, but not charged against him. The prosecuting attorney and court were evidently attempting to get within the purview of this statute, but that they failed to do so, we think is plain. Neither the common law nor statute authorized, or could in the nature of things authorize, a conviction of any crime not proven beyond a reasonable doubt.
II. But let us grant that the jury had been instructed to find the defendant guilty of embezzlement under the evidence, the indictment being for larceny only, could the conviction stand ? We have seen that this court in State v. Broderick, 70 Mo. 622, has said it could. It is with great diffidence we venture to differ with an opinion rendered by the full court, prior to the present division of its labors, and we are equally loth to declare a solemn enactment of the legislature void and [649]*649unconstitutional; but we know no way to escape a duty enjoined upon the office we hold. We give what appears to us sufficient reason for not following the Broderick case.
And, first, the question was not raised in the Broderick case, and the able and distinguished judge who wrote that opinion was not asked to measure section 3947 by the constitution. We are invited to -do so in a most serious and earnest manner. Nor can we be charged with any want of respect for the court in not following that case, when the learned judge who wrote the opinion in that case, in the more recent case of State v. Gabriel, 88 Mo. 640, approved the identical principle for which we are contending here. In paragraph 4, page 641, he says : “ The third instruction given at the instance of the state was erroneous for several reasons. The indictment is in common form for grand larceny; and it has been ruled in such case that an instruction is improper which, based on section 1315, authorizes a conviction for that offense, if the property was lost, etc., and defendant converted the same to his own use with felonious intent, etc. ; and that this was true, notwithstanding the evidence would have sustained a conviction under section 1315. Norton, J., remarked: ‘The indictment in the case at bar charges the defendant with a felonious taking, stealing and carrying away of the watch, and this was all he was called upon or required to defend. We think that the instruction complained of authorized a conviction for the offense created by section 45, supra; and, as the indictment on which the defendant was arraigned and tried failed to allege the facts necessary to constitute an offense under that section, that the court erred in giving the instruction. If it was intended to hold the defendant liable under that section, a proper indictment should have been preferred for that purpose, so that defendant would have been notified of what he would be required to defend.’ State v. Arter, 65 Mo. 653. The rule is [650]*650that, where the indictment is based upon a statute creating the offense, an offense unknown to the common law, the indictment must set forth all the constituent facts and circumstances necessary to bring the accused perfectly within the statutory provisions. People v. Allen, 5 Denio, 76; 1 Arch. Crim. Prac., p. 68, note 1; Hall v. State, 3 Cold. 125; Bishop on Statutory Crimes, secs. 418, 421, 422. And indeed the constitution of our state requires that the accused be informed of the ‘ nature and cause of the accusation ’ against him. Art. 2, sec. 22. This command would not be complied with where it permitted to indict a man for the larceny of an animal and then convict him on evidence, not that he stole the animal, but that he branded or killed it with intent to steal it as set forth in section 1311. * * *
“ The very case this record presents was anticipated in State v. Stone, 68 Mo. 101, where Norton, J., after alluding to the constitutional provision I have referred to, and to the necessity of indictments based upon purely statutory provisions, being so drawn as to charge the offense as in the statute defined, remarks : ‘ It might as well be contended that a person indicted under-section 25, supra, for stealing a hog, could be convicted under section 30, which makes it a larceny for any person to alter the mark or brand of a hog with intent to steal or convert it to his own use,’ ” etc.
If this court would not tolerate the indictment in Gabriel’s case, when the offense was defined by the-legislature to be larceny and not a “ different offense ” as they have embezzlement, “ a fortiori,” we reason, they too would have said that it would not be permitted to charge a man for larceny and convict him of embezzlement, and we think Gabriel’s cuse alone will relieve us of the charge of a want of proper respect for the prior decisions of this court in holding that we will not follow State v. Broderick, supra.
That no felony can be prosecuted save by indictment, the constitution itself declares. Sec. 12, art. [651]*6513, of bill of rights. That an indictment to meet the requirements of the constitution must inform the defendant of the “ nature and cause of the accusation” is plain by section 22 of the bill of rights. That it is competent for the legislature to define the elements of a crime, we all concede, but when the legislature defines one course of conduct larceny, and another, and essentially different course, embezzlement, we deny the right of the legislature to say that a defendant, charged with conduct which it has defined to be only larceny, can be convicted of the crime it has defined to be embezzlement. If the legislature can do that, then it can indirectly do what the constitution expressly prohibits the courts from, doing, namely, trying a defendant without an indictment, for no candid man will claim that an indictment for an offense not intended to be proved and which in fact is not sustained by the evidence, amounts to a legal charge. Human life and human liberty are too sacred to be trifled with in this manner. The British parliament may have such power, but we feel assured our legislature under the constitution of this state has not, and, being profoundly impressed with the importance of the question, I have felt it my duty to express these views.
Are the two offenses different? We answer, they are, by the almost unanimous consensus of the courts, text-writers and bar. In 6 American & English Encyclopedia of Law, 451, it is said: “Embezzlement is a crime unknown to the common law, but depends entirely upon statutory enactments, is a sort of statutory larceny. Though kindred to theft, embezzlement is a separate and distinct offense. Theft involves the idea of unlawful acquisition, whereas embezzlement is a fraudulent conversion of personal property after its possession has been lawfully acquired.” Again at page 455 of same work, it is said : “ Embezzlement, as contradistinguished from larceny, is purely a statutory offense [652]*652and should never be made to overlap common-law larceny.” “ Anything which is indictable at common law as larceny should never be indictable under the statute providing a punishment for embezzlement and vice versa.” Fulton v. State, 13 Ark. 168; Kibs v. People, 81 Ill. 599 ; 1 Wharton, Crim. Law, sec. 1009 ; People v. Salorse, 62 Cal. 139.
But why go further than section 39-17? Its very title, in heavily-leaded type announces that it proposes-to make “a conviction lawful for. another offense,” that is to say, this section only proposes ex vi termini to deal with a case where a defendant is to be convicted of an offense, other than that described in the indictment, and, in the Broderick case, this section was-applied, not because one of these offenses included all the essentials of the other and was recognized as a graded offense, but it was applied as covering a diffevent offense.
As to graded offenses and offenses included in the-allegations of the indictment, there is no infraction of the constitution. The inferior crime is included in the greater and the indictment if a valid one must necessarily charge the facts constituting the inferior in alleging the superior. State v. Frank, 103 Mo. 120. But, where by all the tests the crimes are different, we hold the indictment for one cannot be deemed sufficient to hold the prisoner on the other. To do so, in our opinion, strikes down one of the safeguards of liberty of the citizen. It is wholly unnecessary to resort to-such a statute. Our statute permits the joining of larceny and embezzlement in the same indictment, and this-practice has been sustained by this court since State v. Porter, 26 Mo. 201.
When the defendant is confronted with two counts, one for larceny and another for embezzlement, it is his duty to prepare to meet both. He cannot complain that he is acquitted of one, if he be found guilty of only one. Nor in such cases is the state required to elect. It is [653]*653often a question of fact as to the intention with which the defendant acquires the possession of property. If he intended to steal when he acquired the possession as when a man hires a horse he has already formed in his mind the design and intent to steal at the time of hiring, he may be guilty of larceny; not, however, if he conceives the intent to steal the horse after having acquired the possession lawfully. State v. Hoffman, 18 Mo. 329 ; State v. Shermer, 55 Mo. 83; State v. Stone, 68 Mo. 101. In such a case, it is the duty of the court to define the offense and let the jury ascertain the fact or intent and measure the defendant’s guilt accordingly. So in this case, while the great preponderance of the evidence on the part of the state tended to prove embezzlement, yet there-was evidence from which a jury under proper instructions might have found defendant guilty of larceny if they believed it, and they should have been told what the essentials of larceny were, and if beyond a reasonable doubt they found defendant guilty of either grand or petit larceny, to convict him, otherwise acquit him, as he was no longer on trial for embezzlement after the nolle' was entered. As the instruction, numbered 2, for the state authorized them to find defendant guilty of larceny on the proof of either larceny or embezzlement and there was evidence to support either, we cannot tell whether the jury found him guilty of larceny on the proof of embezzlement or not. This he was entitled to know, and so is this court.
We have come to this. conclusion after the most careful deliberation. We feel that a solemn act of the legislature ought not to be declared unconstitutional unless it is clearly in conflict with the organic law, and as we have said it is with the greatest reluctance, that we feel compelled to diff er with an opinion rendered by this court, prior to its division. On the other hand, when a citizen is on trial for his liberty or his life, we [654]*654think he has a right to demand of us to see that he is not held in violation of a plain constitutional provision.
If we require precedent for examining into the constitutionality ,of this section after it had once passed review without being challenged in this regard, we need only refer to section 1886 of Revised Statutes, 1879. After the constitutionality of that section had been challenged in State v. Hickman, 75 Mo. 418, and State v. Jennings, 81 Mo. 185, it was held constitutional; but in State v. Berkley, 92 Mo. 41, the section was again before this court, and all three of the judges who held it unconstitutional are now members of this court. In holding that section void, Judge Si-ierwood quotes with approval Judge Cooley’s remark, that “the securities of individual rights * * * cannot be too frequently declared nor in too many forms of words ; nor is it possible to guard too vigilantly against the encroachments of power, nor to watch with too lively a suspicion the propensity of persons in authority to break through the 'cobweb chains of paper constitutions' 2 Story’s Const. sec. 1938.”
Keeping in mind then the constitutional provision, “ that the defendant'has a right to demand the nature and cause of the accusation,” does asimple charge of larceny meet the requirement of the constitution ? To do so, the two crimes must essentially be the same, or one included in the other. Compare them. Hirst. Larceny can be committed by any person capable of committing a crime. Embezzlement, under this instruction and section 3549, it was designed to construe, could only be committed by a person sixteen years of age, and, this exception as to age being included in the same clause creating the offense, the indictment must show negatively that defendant does not come within this exception. R. S. 1889, sec. 3549; 6 Amer. & Eng. Encyclopedia of Law,496 ; State v. Lanier, 88 N. C. 658. Second. Larceny was an offense at common law.
[655]*655Embezzlement is purely a statutory crime, and everything must be averred which is necessary to bring the case within .the statute. State v. Gabriel, 88 Mo. 631; People v. Allen, 5 Denio, 76 ; 1 Chit. Cr. Law, 281, 282, 283 (1841); Arch. Cr. Pl. 50 (Ed. 1846); 3 Chitty’s Crim. Law, 962 ; 6 Amer. & Eng. Encyclopedia of Law, 495, notes 4 and 5 ; Hamuel v. State, 5 Mo. 260; State v. Mohr, 68 Mo. 303 ; State v. Flint, 62 Mo. 393.
Third. In charging larceny no allegation of any fiduciary relation existing between the thief and the owner of the goods is necessary. In embezzlement, no indictment is good without such an allegation. Washington v. State, 72 Ala. 272 ; Commonwealth v. Butterick, 100 Mass. 1; 97 Am. Dec. 65; Gaddy v. State, 8 Tex. App. 127; Wise v. State, 41 Tex. 139.
It is the breach of this fiduciary relation that constitutes the gist of the offense. State v. Johnson, 21 Tex. 775. If an indictment for embezzlement would be insufficient which attempted to charge it and failed by reason of omitting the necessary averments to make it a good pleading of a statutory offense, how much more reason there is for refusing to hold a defendant for embezzlement when no attempt or pretense is made of trying to inform him, that the state expects to prove an embezzlement but simply charges him with a larceny. State v. Arter, 65 Mo. 653; State v. Stone, supra. Fourth. In larceny, the thief obtains possession of the goods by stealth and without holding any relation of trust to the owner. In embezzlement, under this section, he must obtain possession of the money or goods by virtue of his employment. Fifth. There can be no larceny without a trespass or felonious caption.
There can be no embezzlement, unless the defendant is in the lawful possession of the property of his employer. Indeed, it is clear that, if one is guilty of larceny, he is not guilty of embezzlement, and, if guilty of embezzlement, he cannot be guilty of larceny. Fulton v. State, supra; Commonwealth v. Simpson, 9 Metc. [656]*656(Mass.) 138. How then, can we say that an indictment for one will be a sufficient notice to a defendant that he will be tried for the other % Is it right, —not is this the technical rule, but as between man and man, the state and the citizen, — is it just to attempt to deprive him of his liberty, without giving him a fair and clear statement of the facts upon which his guilt rests % We think not. It is immaterial what an offense is named; the constitution means the defendant shall have a right to know of what he is accused. Not the evidence, but a clear statement of such facts as constitute the statutory offense (in this case) so that he may know how and what he must meet. Huntsman v. State, 12 Tex. App. 619 ; Baker v. State, supra.
Indeed, the writer regards the argument of Judge Hurt in Huntsman v. State as unanswerable, and would be perfectly willing to decide this case upon that authority alone. So we conclude that these two offenses as to the sections we have considered are so materially different and distinct, that the legislature having defined each cannot permit a defendant to be put upon trial for either, without an indictment that would advise him of the nature and cause of the accusation, and we hold that as the section now stands a mere general charge of larceny will not be sufficient to sustain a charge of embezzlement. In other words, no one can be prosecuted for a felony except upon an indictment for that felony.
To say that a man can be indicted for one crime and convicted of a different one, is a denial of the right to demand the nature and cause of the accusation. If the legislature desires to make larceny and embezzlement one, they can do so by providing they shall have the same ingredients ; but so long as by the legislative declaration they are committed by different classes of persons, by persons bearing different relations to each other, and under different circumstances, they are distinct crimes, and, under the constitution, each crime [657]*657must be described in the indictment, and it follows a description of one will not fit the other, and it is not competent for the legislature to dispense with a material averment of a crime that it has defined. So we can answer that the instruction would not have been good if it had authorized the jury to find defendant guilty of embezzlement.
III. The 'jury in its verdict did not specify the count under which they found defendant guilty of petit larceny. The court ought not to have received such a verdict. The defendant was entitled, on the clearest principles of law and right, to know under which count they claimed he was guilty, and he was entitled of course to know on which he was acquitted. As it is, no one can know of which he is guilty, and of which he is innocent.
We are cited by the attorney general to State v. Pitts, 58 Mo. 556, as sustaining a general verdict where there are several counts in the indictment, but that case is not applicable here. In that case the several counts all related to the same transaction, one felonious assault. That case simply followed State v. Jennings, supra, and State v. Bean, 21 Mo. 267, and State v. McCue, 39 Mo. 112.
In every case, the jury should respond to the whole case. If a civil case, to the whole petition. If a criminal case, to every count in the indictment. They should either acquit or convict on each count. Wilson v. State, 20 Ohio, 26; Williams v. State, 6 Neb, 334; Casey v. State, 20 Neb. 138; Bricker v. Railroad, 83 Mo. 391 ; State v. Bedell, 35 Mo. App. 551.
For these reasons, the judgment is reversed and remanded for a new trial in accordance with this opinion. As it goes back, we may as well say, that the court cannot be too careful in confining witnesses to what they know and in excluding their guesses and surmises.