
    State of Maryland vs. Samuel S. Tracey.
    
      Embezzlement — Indictment—Sec. 75 of Art. 27 of the Code.
    
    Section 75 of Article 27 of the Code of Public General Laws, providing that an employe who “shall fraudulently embezzle any money” from his employer, “shall be deemed to have feloniously stolen the same,” makes the offence larceny, and an indictment under such section, which does not allege the ownership of the property or money embezzled, is not sufficient to sustain a conviction.
    Appeal as upon Writ of Error, from the Circuit Court for Anne Arundel County.
    The case is stated in the opinion of the Court.
    The cause was argued before Alvey, C. J., Robinson, Irving, Bryan, McSherry, and Briscoe, J.
    
      James M. Munroe, State’s Attorney for Anne Arundel County, for the appellant.
    
      John Ireland, and James Reved, for' the appellee.
   Irving, J.,

delivered the opinion of the Court.

The appellee was indicted for embezzlement under section 15, of Article 21 of the Code of Public General Laws. There were three counts in the indictment, and a demurrer was interposed to them, which the Circuit Court for Anne Arundel County sustained. The petition for removal of the record to this Court, as upon writ of error, avers as the ground of error, that the Court adjudged “the indictment to be insufficient in law, because the said indictment did not allege that the money charged to have been fraudulently embezzled by the traverser, as set out in the indictment, was the money and property of the ‘ Curtis Creek Mining Furnace and Manufacturing Company,’ nor did said indictment allege any ownership of the said money charged to have been fraudulently embezzled as set out .in-said indictment; whereas, the Court ought to have overruled the demurrer, and ought to have sustained the indictment as sufficient in law, because it is not necessary to allege the ownership of the property charged to have been fraudulently embezzled as set out in the indictment.”

A single question is presented for our decision, to wit, whether in an indictment under the section 75, of Article 27 of the Code, the ownership of the property or money embezzled, must be alleged to make the indictment good and sufficient in law to- sustain a conviction.

The contention of the State is, that the offence is statutory, and that having substantially followed the language of the statute, the indictment is good; and the appellee contends that the statute having declared the offender to have feloniously stolen, made the offence larceny, and consequently all the essential averments of a. good indictment for larceny must be found in this indictment, or it is bad.

This statute was enacted by chapter 310 of the Acts of the General Assembly of 1886. It is borrowed almost verbatim, from 39 George III, chapter 85, and 7 and 8 George IY, chapter 29, section 47. In defining the offence of embezzlement by servants, employes and agents, those statutes use the language which ours has copied, “Shall he deemed to have feloniously stolen the same from his master or employe. ’ ’

If this makes the offence larceny, then an indictment for that offence should contain all the material averments which are necessary to be proven in order to convict; and nothing must be left to intendment. 1 Archbold Cr. Pl. & Pr., (8th Ed.,) 265; 1 Bishop’s Grim. Prac., secs. 505, 509.

That these statutes do make the offence larceny, and that, as a consequence thereof, it is necessary to allege the ownership of the property, as contended for by the appellee in this case, has been expressly decided both in England and in this country. In McGregor’s Case, Leach on Crown Law, 938, the question was distinctly presented and decided on a motion to arrest a judgment upon an indictment which was defective in omitting to charge the ownership of the property. Judgment in that case was arrested. Much-stress has been laid, in argument, that this decision was rendered by only a majority of the Judges. If that was .the case, it has been acquiesced in and followed ever since. The statement that it was by a majority of the Court finds explanation in the fact that two of the Judges were not present at the final consultation where the conclusion was reached. In 2 East’s Grown Law, 578, it was said with reference to this case: a difference of opinion for a while prevailed, but on the 25th of .February, 1802, all the Judges, (except Lord Kenyon, C. J. and Rooke, J., who did not meet the other Judges in consultation,) were of opinion that the statute made the offence larceny, and that the indictment was bad in not alleging the ownership of the property.

In 2 Russell on Crimes, (9th Am. from 4th London Edition,) 464, that learned author says: “Except as section 71, of the 24 and 25 Vict., ch. 96, may have otherwise provided, it seems that the indictment ought to contain all the requisites of an indictment for larceny at common law.” This statement immediately follows his citation of the decision of the Court of King’s Bench that counts for embezzlement and larcfeny could be joined, because Lord Ellenbobough, Chief Justice said, that the statute had made it a felony and a larceny. On the next page Mr. Russell cites and states the McGregor Case in support of his statement of the law. We have been unable to find any case throwing discredit on this decision or shaking its authority. The case of Rex vs. Beacall, Moody’s Crown Cases, 15, is to the like effect, and Mr. Wharton’s and Mr. Chitty’s Precedents sustain this as the law. New Jersey has a similar statute, and in State vs. Lyon, 45 N. J. Law, 272, it was decided that ownership in such case was an essential averment; and the Court cites Wharton’s and Chitty’s Precedents and McGregor’s Case as authority. Alden vs. The State, 18 Florida, 187, where a like law prevails, seems to maintain the same view. Having borrowed the law from England where an established construction -prevails and has long obtained, it is reasonable to hold, that we have adopted it with the interpretation there accorded to it. The judgment will be affirmed.

(Decided 20th February, 1891.)

Judgment affirmed.  