
    Smith v. The Commonwealth.
    1847. June Term.
    
    Under the 8th section of the act passed February the 9th, 1811, entitled “ an act to amend an act, entitled ‘ an act for regulating the navigation of James river above the falls of said river,’ ” it is not necessary that the party charged with embezzlement under that act, should be the captain of the boat, in order to bring his offence within the act.
    
    The prisoner was indicted in the Circuit Court of Henrico and the City of Richmond, for embezzling thirty-six barrels of flour. The indictment charged that the prisoner was a free water-man plying on the James river and the canal thereof, and that he had embezzled thirty-six barrels of flour which had been put upon his boat in the county of Fluvanna to be carried to the City of Richmond.
    
    On the trial, after it had been proved that the flour was put on board the boat of which the prisoner represented himself to be the captain, though he was not the owner, and that he had brought the flour to Richmond and had left it with a commission merchant to be sold as his own, and had obtained an advance thereon from the merchant, the prisoner by his counsel, moved the Court to instruct the jury: “ That to convict the prisoner the jury must be satisfied from the evidence that the prisoner was a free water-man engaged in navigating the James river and the canal, and that he did receive on board of his boat, (of which he was then the captain,) the thirty-six barrels of flour charged to have been embezzled ; and that thereafter the prisoner did embezzle the said flour or a part thereof.” This instruction the Court gave, omitting the words “of which he was then the captain;” and refused to give it with these words in it.
    Afterwards, the prisoner by his counsel, moved the Court to instruct the jury: “ That to convict the prisoner the jury must be satisfied from the evidence that the prisoner was not merely the captain or master of the boat on board of which the flour was received, but must further be satisfied from the evidence that the boat was the boat of the prisoner, and not barely in charge of him as such captain or master.” This instruction the Court also refused to give. And to the opinions of the Court refusing to give the instructions asked for, the prisoner excepted.
    The jury found the prisoner guilty, and fixed the term of his imprisonment in the penitentiary at three years; and judgment was accordingly. Whereupon the prisoner applied to this Court for a writ of. error.
    
      R. G. Scott, for the prisoner.
    
      
       2 Rev. Code, ch. 248, § 8. “ And be it further enacted, That, in future, every free water-man who shall receive on board of his boat or other vessel, any produce, goods, wares or merchandize, and shall embezzle the same or any part thereof to the value of four dollars and upwards, shall be deemed guilty of felony; and, upon conviction thereof before any Court having competent jurisdiction, he shall suffer a confinement in the jail and penitentiary house for a term not less than one year nor more than five years,” &c.
    
   By the Court.

The writ of error is refused.  