
    [No. 20418.
    In Bank.
    September 24, 1888.]
    THE PEOPLE, Appellant, v. H. A. GALE, Respondent.
    Criminal Law — Embezzlement by Administrator — Indictment. — The fact that an administrator has received a larger sum than he charges himself with in his final account does not, in the absence of all averments of other necessary inculpatory facts, constitute the crime of embezzlement, and a demurrer to an indictment so charging the offense of embezzlement is properly sustained.
    ■ Appeal from an order of the Superior Court of Tehama County sustaining a demurrer to an indictment.
    The facts are stated in the opinion.
    
      Attorney-General Johnson, and A. M. McCoy, for Appellant.
    
      Chipman & Garter, for Respondent.
   Foote, C.

This appeal is taken by the people of the state of California from an order made by the court below sustaining the defendant’s demurrer to the indictment filed against him.

An inspection of the indictment shows that it was attempted by it to charge the defendant with the crime of embezzlement. After stating that the defendant, as administrator of the estate of one Warren Polly, deceased, had received from one Kingsly the sum of $1,794, but had accounted for but $1,700 of that sum in rendering his final account in said estate to the proper court, it is charged “ that in making and rendering the said final account as aforesaid, in the said county of Tehama, the said Gale did then and there, as such administrator, fraudulently appropriate to his own use and purpose the sum of ninety-four dollars, which said money then and there belonged to the estate of the said Warren Polly, deceased,” contrary, etc.

The fact, as charged in the indictment, that the defendant received into his hands as administrator the sum of $1,794, but in rendering his final account charged himself with only $1,700, does not, in the absence of all averments of other necessary inculpatory facts, constitute the crime of embezzlement; therefore, we advise that the order appealed from be affirmed.

Belcher, O. 0., and Hayne, 0., concurred.

The Court.

For the reasons given in the foregoing opinion, the order is affirmed.  