State v. Norkewicz

Lore, C. J.: The majority of the Court think the proof does not sustain the indictment. It is true, under the statute, that you are not bound in describing the property embezzled to say anything more than money, but when you do particularize and describe the kind of money, as you have done here, that becomes a material part of your averment, and must be proved as laid. You made it material by your definition of the offense; and having so defined it, you are not protected by this statute. That principle is laid down in 1 Wharton on Criminal Law, Section 629, as follows : “An allegation in an indictment which describes, defines, qualifies, or limits a matter material to be charged, is a descriptive averment, and must be proved as laid. Thus, in an indictment for resisting a deputy sheriff in the discharge of his duty, an averment [302] that the sheriff was legally appointed and duly qualified, is descriptive and must be proved ; as in such case the whole averment of an assault upon a deputy sheriff cannot be omitted without affecting the charge against the prisoner.” And you will note that the language of this statute {Rev. Code 9J$) is,— “ In every indictment for a violation of this section, when the offense shall relate to coin or notes circulating as . money, it shall be sufficient to allege the embezzlement to be of money without specifying any particular coin, or notes circulating as money, and such allegation, so far as regards the description of the property, •shall be sustained,” etc. It does not say if you make it more parlar in description that it must not be proved as laid. . Gentlemen of the jury:—The Court hold that the proof in this case does not sustain the indictment. We therefore direct you to return a verdict of not guilty. Verdict, not guilty.