#### STATE v. LINWOOD W. EURELL.

(Filed 10 December, 1941.)

1. Bailment § 1—

One wbo receives money for safe keeping is not an agent, consignee, clerk, employee or servant, but is a bailee if under tbe agreement of tbe parties he is to return the identical money received, and is a debtor if he is to use the money and return its equivalent on demand.

2. Embezzlement § 1: Statutes § 8—

The crime of embezzlement is purely statutory and the statute creating the offense must be strictly construed and only those classes of persons therein defined as coming within its purview can be guilty of the offense.

3. Same—

The fact that ch. 31, Public Laws 1941, amended O. S., 4268, by adding “bailee” to the classes of persons who might fall within the condemnation of the embezzlement statute constitutes a legislative declaration that theretofore a bailee was not included in the definition of classes of persons defined by the statute.

4. Same—

A “bailee” or “debtor” may not be prosecuted for embezzlement under C. S., 4268, prior to the amendment of 1941, since neither a “bailee” nor “debtor” is included in the classes of persons defined by the statute prior to the amendment.

Appeal by defendant from Olive, J., at June Term, 1941, of RobesoN.

Reversed.

Criminal prosecution on bill of indictment charging ‘tbe crime of embezzlement.

Tbe defendant operates a cafe and small grocery. Tbe prosecuting witness was bis customer. In 1936 sbe left witb tbe defendant about $37.00, wbicb sbe later consumed in trade. Thereafter, over a period of several years, sbe left witb him small amounts to keep for her. Tbe total amount thus deposited witb tbe defendant amounted to $203.00. In November, 1940, at her request, tbe defendant executed and delivered to her a paper writing as follows:

“November 11, 1940, received of Lessie Carr, money to keep, $203.00.

Signed L. W. Eueell.”

Thereafter, sbe demanded of him tbe return of tbe money due. Upon her demand for tbe money due be failed to pay tbe same, claiming, according to her testimony, that be bad invested it in a truck. Thereupon this prosecution was instituted, it being charged in tbe bill of in*520dictment that tbe defendant was “tbe agent, consignee, clerk, employee and servant of Lessie Carr” and as such bad embezzled tbe money tbus entrusted to bim. Tbe cause was tried upon tbe theory tbat tbe contract tbe evidence for tbe State tended to establish constituted tbe defendant an agent.

Tbe jury returned a verdict of “guilty as charged.” From judgment thereon tbe defendant appealed.

Attorney-General McMullan and Assistant Attorneys-General Bruton and Patton for the State.

David M. Britt and McKinnon & Seawell for defendant, appellant.

BajbNhill, J.

One who receives money for safekeeping is not an agent, consignee, clerk, employee or servant. He is a bailee if under tbe agreement of tbe parties be is to return tbe identical money received, and debtor if be is to use tbe money and return its equivalent on demand. Neither “bailee” nor “debtor” was included in our embezzlement statute, C. S., 4268, prior to 1941.

An interesting and comprehensive history of tbe embezzlement statute is contained in tbe opinion of Stacy, C. J., in S. v. Whitehurst, 212 N. C., 300, 193 S. E., 657. Its meaning and its applicability only to tbe classes of persons therein named is fully discussed. It is there said “tbe embezzlement statute begins by defining tbe classes of persons who may fall within its condemnation, or who may commit tbe statutory crime of embezzlement, and as it is a penal statute, creating a new offense, it cannot be extended by construction to persons not within tbe classes designated. 2 Bishop, Crim. Law., sec. 331. In other words, if tbe statute be so worded as not to include tbe defendant, bis office, or bis status, an indictment thereunder will not lie against bim.” S. v. Keith, 126 N. C., 1114; Calkins v. S., 18 Ohio S., 366; 98 Am. Decision, 121. Further discussion is unnecessary.

Tbat tbe General Assembly, by cb. 31, Public Laws 1941, added “bailee” to tbe classes of persons embraced in tbe statute constitutes a legislative declaration tbat it. was not intended tbat “agent, consignee, servant or employee” should include a bailee.

Tbe motion for judgment as of nonsuit should have been allowed.

Reversed.