State v. Muston

21 La. Ann. 442

• Court: Supreme Court of Louisiana
• Decided: May 15, 1869
• Docket: No. 2243
• Status: Published

Opinion

Ludeling, C. J.

This record shows that George Muston was convicted of embezzlement, that he was sentenced to eighteen months’ imprisonment at hard labor, and to pay the cost of the prosecution.

Our attention has been directed to several alleged errors apparent upon the face of the record. It will he necessary to notice only one of them.

The indictment recites “ that the prisoner did receive and take into his possession for and on account of the said O. E. Hall the sunn of eleven dollars so received as aforesaid, the said George Muston then and there fraudulently and feloniously did wrongfully use, conceal, dispose and otherwise embezzle contrary to the form of the statute.”

The defect is, the thing embezzled is not indicated. The statute declares “that in prosecutions for embezzlement or larceny of bank notes, checks, bills of exchange, promissory notes, gold or silver money, or of any other property of that kind, it shall not be necessary to set forth in the indictment a minute and detailed description thereof, but a general allegation of the amount, and the thing embezzled or' stolen1 shall be sufficient.” It is necessary to designate the thing embezzled. What is the prisoner charged in the indictment with embezzling ?■ The sum of eleven dollars. But the indictment does not inform us in what “the sum of eleven dollars” consisted; it is not alleged that the sum embezzled consisted in gold or silver dollars or in currency- — whether in two or more coins or treasury notes or bank bills. The defect is one of substance and not of form, and the omission vitiates the indictment. Acts of 1855, 5 82; 10 An. 230 ; 20 An. 49.

It is therefore ordered, adjudged and decreed that the judgment1 of the lower court be avoided and reversed, that the verdict of the jury be set aside, and that the case be remanded to be proceeded in according to law.