and who, however good their intentions might be at the time, might not be able to replace it, and who, if they are so disposed, often have the opportunity, from their position, of concealing the detection of its conversion by them. This statute is designed to furnish the principal, or employer, with some guaranty that such officer, agent, or clerk so intrusted shall not convert it to his own use at all, without the consent of such principal or employer."

The same judicial interpretation of the statute, as it then stood, will apply with equal force to the amended form, so far as necessary to this investigation. As in the original article, so in the amended article; the relations of officer and institution, of agent and principal, and of clerk and employer, and the relation to the article or thing intrusted to the officer, agent, or clerk are the same in each. The most material addition made by the amendment is to include the further relation of attorney and client, and to bring the money or property of the client, intrusted to the attorney by virtue of such relation, within its provisions.

In Wise v. State,1 the indictment charged that the defendant was intrusted, as the clerk and agent of W. D. & Co., with the collection and receipts of their money, and this averment, in connection with the averment that, as such clerk and agent, he did receive the money, it was held, sufficiently showed that it was his duty, as clerk, to receive it, and that it was received by virtue of his clerkship. The indictment was held sufficient. In that case the accused was charged with having, as the clerk and agent of W. D. & Co., collected and misapplied the funds of his employers. In Block v. State, the point decided was that an indictment for embezzling United States currency or national bank bills; but there was no question on the sufficiency of the indictment.

The defect pointed out in the statute, as it then stood, was cured by the amended article so as to embrace within the subjects of embezzlement, not only money, eo nomine, and property, but also town, city, or county scrip, drafts, promissory notes, bank bills, national bank notes, treasury notes of the United States of America, or any article of value, or the proceeds of such property, after sale, coming otherwise within the purview of the statute; and it was further declared by the amendment that "within the meaning of money, as used in this article, is included any circulating medium current as money."

We receive no further light from the Texas cases; there have been no adjudications by the court of last resort construing the amendment to the code under which this prosecution is attempted. We have already seen the additions made by the amendment to the original article.

It is a rule of construction of penal statutes which deprive the citizen of life, liberty or happiness-which subject one to punishment or forfeiture, or to summary process as well as all manner of statutes in derogation of common-law rights, that they are to have a strict construction; and, as said by Mr. Bishop, "such statutes are to reach no further in meaning than their words; no person is to be made subject to them by implication, and all doubts concerning their interpretation are to preponderate in favor of the accused." This rule, however, must be held in subordination to the provisions of our own statutory rules of construction.

The amended article under consideration declares, with reference to the offense charged in the indictment, that if any agent of any incorporated company or institution, or of any city, town, or county, or of any private person or copartnership, shall embezzle, or fraudulently misapply, or convert to his own use without the consent of his principal, any of the articles enumerated in the amendment - as, money, property, etc. belonging to such principal, and which shall have come into his possession, or shall be under his care, by virtue of his agency, shall be punished, etc. The controlling words of the statute, so far as they relate to agents, are that the articles or things embezzled, etc., are belonging to such principal, or the proceeds, arising from sale, which shall have come into his possession, or shall be under his care, by virtue of such agency, and contain two elements: first, the property, money, or other thing charged to have been embezzled, or otherwise misapplied, must be the property of the principal; and, second, that it be in the possession, etc., of the agent by virtue of his agency. This is the clear import of the words employed in the statute.

The indictment sufficiently charges the appellant John P. Griffin, as the agent of the Texas Express Company, with the receipt of the money alleged to have been fraudulently converted, and that he so received it in virtue of his said agency; but it is not averred that the money belonged to his principal, the Texas Express Company. But it is expressly averred that the money belonged to the Paris Exchange Bank; and between the bank and the accused no trust or fiduciary relation whatever is averred or intimated in the indictment.

The averment in the indictment makes the Texas Express Company the bailee or carrier of the money, and not the defendants. Because the indictment fails to charge any fiduciary relation between the owners of the money and the appellant, and because it fails to charge that the money belonged to the principal of the agent accused, or that the Texas Express Company had any property or interest in the money charged to have been embezzled, it is defective and insufficient to support the offense defined in the statute. This defect in the indictment

disposes of the case as to both the defendants, and necessitates the reversal of the judgment and the dismissal of this prosecution.

Because the indictment is not sufficient to support the offense created by the statute, as herein first above set out, the judgment of the District Court of Lamar County is reversed and this prosecution is dismissed.

Reversed and dismissed.

EMBEZZLEMENT - FRAUDULENT MISAPPROPRIATION OF MONEY BY

ATTORNEY.

R. v. COOPER.

[12 Cox, 600.]

In the English Court of Criminal Appeal, 1874.

W. Deposited Title Deeds with D. as security for a loan; and requiring a further loan, the defendant, an attorney, obtained for W. a sum of money from T., and delivered to her a mortgage deed as security. There were no directions in writing to the defendant to apply the money to any purpose, and he was entrusted with the mortgage deed, with authority to hand it over to T., on receipt of the mortgage money, which was to be paid to D. and W., less costs of preparing the deed. The defendant fraudulently converted a substantial part of the money to his own use. Held, that as there was no direction in writing, and the mortgage deed was duly delivered to T., the defendant was not guilty of a misdemeanor within 24 and 25 Victoria.1 Held, also that he was not guilty of the misdemeanor, in sec. 76, of converting property entrusted to him for safe custody, with intent to defraud.

Case reserved for the opinion of this court by GROVE, J., at the last assizes for the county of Chester.

The defendant, an attorney, was indicted under the 24 and 25 Victoria,2 for having converted to his own use certain money entrusted to him or received by him as the proceeds of a deed entrusted to him for a special purpose.

The indictment contained two counts framed respectively under the seventy-fifth and seventy-six sections as follows:

First count. The jurors for our sovereign lady the Queen, upon their oath present, that Thomas Cooper, on the 25th day of March, in the year of our Lord 1867, then being an attorney and being entrusted with certain property, to wit, the sum of one hundred and forty pounds of John Whittaker, for safe custody, did then and there unlawfully and with intent to defraud, convert and appropriate a certain part of the said property of the said John Whittaker, to wit, the sum of eighty

pounds, to and for the use and benefit of himself the said Thomas Cooper, against the form of the statute, etc.

Second count. -And the jurors aforesaid, upon their oath aforesaid, do further present that the said Thomas Cooper, on the day and year aforesaid, was entrusted by the said John Whittaker with a certain valuable security, to wit, a deed of mortgage of certain property of the said John Whittaker, to secure the repayment of a sum of one hundred and forty pounds then lately before agreed to be lent and advanced to the said John Whittaker by one Martha Taylor, such valuable security being intrusted to the said Thomas Cooper, as the attorney and agent of the said John Whittaker for the special purpose and with the intent and object, that the said Thomas Cooper should receive from the said Martha Taylor, the said sum of one hundred and forty pounds, for and on behalf of the said John Whittaker, and having so received such sum, should thereout pay the sum of fifty pounds then due and owing from the said John Whittaker, to one Nathaniel John Dewsbury, and should pay the remainder of such sum of one hundred and forty pounds, to and for the use of the said John Whittaker. And the jurors aforesaid upon their oath aforesaid do further present that the said Thomas Cooper having on the day and year aforesaid, received from the said Martha Taylor, the said sum of one hundred and forty pounds, on the deed and valuable security above mentioned unlawfully, fraudulently, in violation of good faith, and contrary to the purpose, intent, and object with which such valuable security had been so entrusted to him, as aforesaid, did convert to his own use and benefit a certain part of the proceeds thereof, to wit, the sum of eighty pounds, against the form of the statute, etc.

The facts so far as they are material to the questions submitted to the court were these:

A Mr. John Whittaker had before 1867, obtained a loan of fifty pounds from a Mr. Dewsbury on a deposit of title deeds to some leasehold property. In consequence of Whittaker's wish for a further loan, the defendant in 1867 obtained one hundred and forty pounds from a Miss Taylor, and prepared and handed to her brother-in-law, who acted for her, a mortgage deed, securing the one hundred and forty pounds. Out of the money which defendant was to receive he was to pay off Dewsbury and pay the balance to Whittaker. He did not pay Dewsbury, and he only paid Whittaker sixty pounds, on which Whittaker paid him interest, while he, defendant, without Whittaker's knowledge, paid the mortgagee's interest on the one hundred and forty pounds, Whittaker being also ignorant, at all events for some years, that defendant had obtained so much as one hundred and forty pounds. Allowing ten pounds for the preparation of the mortgage deed, which defendant's

brother and former partner said was a fair sum, the defendant would have seventy pounds of Whittaker's in his possession, less the difference of interest which he paid without authority.

Defendant's counsel contended that there was another thirty pounds paid to Whittaker, which would reduce the sum to forty pounds, but the evidence preponderated greatly against this.

A good many letters were put in to show the defendant's conduct in the matter, but with these the court need not be troubled.

After reading to them the material parts of the evidence I told the jury that if they were satisfied without reasonable doubt, that the defendant received the £140 from Whittaker, and, in violation of good faith, and fraudulently, converted to his own use a substantial part of the money which they considered he should have paid to Whittaker, and to Dewsbury for him, they should find him guilty; otherwise not. The jury found a verdict of guilty.

It must be taken by the court: 1st. That there were no directions in writing to the defendant to apply the money or any part of the proceeds of the deed to any purpose. 2d. That defendant was entrusted with the mortgage deed with authority to hand it over to the mortgagee or her agent on receipt of the mortgage money which was to be paid to Dewsbury and Whittaker, less costs of preparing deed. 3d. That defendant received £140 for Whittaker's use, and in violation of good faith and contrary to the purpose for which such deed and money were entrusted to him, converted a substantial part of the money to his own

use.

I respited the judgment, and allowed the defendant to go out on bail (to be fixed by magistrates) to appear for judgment if required.

The question for the court is: Does the offense committed by the defendant come within either or both the sections above named, viz., the seventy-fifth and seventy-sixth sections.

If within both or either of them, the conviction to be affirmed, if not within either, a verdict of not guilty to be entered.

Bowen, Q. C. (E. J. Dunn with him), for the prisoner. The conviction can not be sustained. The case is not within the language of either section of the statute. [He was then stopped by the court.] Torr, Q. C., in support of the conviction. The first count of the indictment is framed upon the seventy-sixth section of the 24 and 25 Victoria,1 which enacts that "whosoever, being a banker, merchant, broker, attorney, or agent, and being entrusted with the property of any other person for safe custody, shall, with intent to defraud, sell, negotiate, transfer, pledge, or in any manner convert or appropriate