#### Stockton v. State.

Opinion delivered June 27, 1927.

J. P. Clayton and Evans & Evans, for appellant.

H. W. Applegate, Attorney G-eneral, and Darclen Moose, Assistant, for appellee.

Mehaffy, J.

The appellant, Finis E. Stockton, was indicted in the Franklin Circuit Court of the Ozark District in two counts. The first count charged the larceny of a Government bond of one thousand dollars, belonging to J. S. Turner. The second count in the indictment charged the defendant with embezzling the same bond.

The defendant demurred to the indictment on the ground that it did not state facts sufficient to constitute the crime of larceny or embezzlement. The court overruled the demurrer, and appellant filed a motion in arrest of judgment, which was also overruled, and exceptions saved. The appellant filed a motion for a new trial, which was overruled, exceptions saved, and appeal taken to this court.

The charge of embezzlement in the indictment is as follows:

> “The grand jury aforesaid, in the name and by the authority aforesaid, further accuses Finis E. Stockton of the crime of embezzlement, committed as follows :

> “That the said Finis E. Stockton, in. the county, district and State, and at the time aforesaid, and having then and there in his custody and possession one United States one-thousand dollar Liberty bond of the value of one thousand dollars, and the property of J. S. Turner, did unlawfully, fraudulently and feloniously make away with and embezzle and convert to his own use the said one-*585thousand dollar United States Government Liberty bond, as aforesaid, without the knowledge and consent of the aforesaid J. S. Turner.”

Appellant contends that the indictment is insufficient to charge the crime of embezzlement. The indictment was drawn under § 2500 of Crawford- & Moses’ Digest, which is as follows: '

> “If any clerk, apprentice, servant, employee, agent or attorney of any private person, or of any copartnership, except clerks, apprentices, servants and employees within the age of sixteen years, or any officer, clerk, servant, employee, agent or attorney of an incorporated company, or any person employed in any such capacity, shall embezzle or convert to his own use, or shall take, make way with, or secrete, with intent, to embezzle or convert to his own use, without the consent of the master or employer, any money, goods or rights in action, or any valuable security, or effects whatsoever, belonging to any other person, which shall have come to his possession, or under his care or custody, by virtue of such employment, office, ag’ency or attorneyship, he shall he deemed guilty of larceny, and, on conviction, shall be punished as in cases of larceny.”

This section of the Digest was read to the jury as the section under which the indictment was drawn. The other section of the Digest discussed is § 2502 of Crawford & Moses’ Digest, and it reads as follows

> “If any carrier or other bailee shall embezzle, or convert to his own use, ór make way with, or secrete with intent to embezzle or convert to his own use, any money, goods, rights in action, property, effects ' or valuable security, which shall have come to his possession, or’ have been delivered to him, or placed under his care or' custody, such bailee, although he shall not break ahy trunk, package, box or other things in which he received them, shall be deemed guilty of larceny, and, on conviction, shall be punished as in cases of larceny.”

It will be observed that the indictment does not charge anywhere that the appellant had possession of *586the bond or received it as clerk, apprentice, servant, employee, agent or attorney, and does not allege that be was bailee, and a majority of tbe court are of tbe opinion that tbe indictment does not state facts sufficient to constitute the crime of embezzlement. To constitute embezzlement under this statute it is necessary to charge that the bond came into possession of tbe appellant as bailee or agent, etc., or tbe indictment must contain allegations sufficient to show tbe fiduciary capacity of the appellant.

This court held, in passing upon an indictment for embezzlement, where the indictment charged the embezzlement of a horse and buggy, and also charged that the defendant was then and there bailee, that the indictment did not state facts constituting a public offense and did not state facts sufficient to constitute the offense of embezzlement. “To constitute embezzlement of the horse and buggy, it was necessary to charge that same came into possession of the appellant as bailee. The indictment does allege that the appellant was bailee of Reiman and Wolfort, and this was sufficient to show his fiduciary capacity. But nowhere is it alleged that the horse and buggy came into his possession as such bailee, nor is it alleged that the horse and buggy, being in his possession as bailee, were converted to his own use. In other words, no facts are stated in the indictment to show that appellant had possession of the horse and buggy of Louis Reiman and L. Wolfort as their bailee. This was essential to the validity of the indictment.” Tally v. State, 105 Ark. 28, 150 S. W. 110:

We think the case at bar is ruled by the above case. In the case at bar, however, it is not- even charged that the appellant was bailee. There is nothing in the indictment to indicate the fiduciary capacity. See State v. Scoggins, 85 Ark. 43, 106 S. W. 969.

As we have said, the case of Tally v. State, above mentioned, rules this case, and in the Tally case there is a thorough discussion of the law, and numerous authorities are cited, and it would be useless to repeat them here.

*587Since we have reached the conclusion that the indictment does not state facts sufficient to constitute the crime of embezzlement, it becomes unnecessary to discuss the other questions discussed by attorneys in their briefs. This case is reversed, and remanded with directions to sustain the demurrer to the indictment.