THE PEOPLE v. BAILEY, 23 Cal. 577

Crocker, J. delivered the opinion of the Court—Norton, J. concurring specially. The indictment in this case charges the defendant with the crime of embezzlement: 1st, in embezzling the sum of three hundred and sixty dollars and fifty cents on the nineteenth day of November, 1861; 2d, in embezzling the sum of six hundred and thirty-two dollars and twenty-five cents on the first day of January, 1862. The defendant demurred to the indictment on several grounds; the Court sustained the demurrer and the plaintiff appeals. One ground of the demurrer was, that the indictment charges two distinct offenses.

Sec. 241 of the Criminal Practice Act provides as follows: “ The indictment shafi charge but one offense, but it may set forth that offense in different forms under different counts.” Whether the indictment intended to state but one act of embezzlement, under different counts, varying the amount and time, or whether it intended to set forth two separate and distinct acts of embezzlement, does not appear. If the former be the case, then a demurrer would not lie.

If the latter, then the prosecuting attorney should be required at the trial to elect upon which charge he will proceed, and he will then be confined to that. Another ground of demurrer is, that the indictment does not charge any public offense.

Sec. 70 of the act respecting crimes and punishments provides that, “ if any clerk, apprentice, or servant, or other person, whether bound or hired, to whom any money, or goods, or chattels, or property shall be intrusted by his master or employer, shall withdraw himself from his master or employer,” etc., shall be punished in the manner prescribed by law for feloniously stealing property.

The indictment charges that the defendant was employed by the proprietors of a daily newspaper, as their clerk and servant; and in the course of his duties as such and by virtue of said employment, he collected the moneys due his employers ; and on the day named he received and took into his possession a certain sum of money, for and on their account, which he fraudulently and feloniously embezzled and converted to his own use, with the intent to steal the same.

Upon examination, it will be found that our statute differs in a very important particular from the statutes of other States defining the crime of embezzlement. In other States it is generally extended to inleude all embezzlements or fraudulent conversions of money or property which shall have come to the possession of the servant “ by virtue of his employment.” But the statute of this State confines it to money or property intrusted by his master or employer to the servant, evidently intended to confine it to cases where the employé received the money directly from the employer.

The indictment in this case follows a form founded upon the statutes of other States, and would doubtless be good- under them. It is clear that it does not state an offense within the provisions of the statutes of this .State, and the Court therefore committed no error in sustaining the demurrer. The judgment is affirmed. Norton, J. I think money received by a clerk who is intrusted by his employer with bills to collect, in the ordinary course of his business as a clerk, is money intrusted to him by his employer, and that our statute is in substance the same as other States upon this subject.

But I also 'think that two offenses were charged in this indictment, and that for this reason the demurrer was properly-sustained. I therefore concur in the judgment of affirmance.