Altering marks or brands-Poisoning stock. said count for receiving stolen goods, that it was essential thereunder "that the identical" defendant, naming him, "named in that count, did feloniously, knowing that such goods were so stolen, receive or conceal them, or a part of them." Held, that this instruction was not erroneous for not stating that the goods must have been received from the thief or his agent. 52 Ind. 379. A wife, in the absence of her husband and without his knowledge, received stolen goods and paid money on account of them. The thief and husband afterward met. The latter then learned that the goods were stolen, and he agreed on the price which he was to pay for them, and paid the balance to the thief. Held, that on these facts the husband might be convicted of receiving the goods, knowing them to be stolen. The Queen v. Woodward, 31 L. J. Mag. Cas. 91, in Am. L. R. (N. S.) Vol. I. SEC. 7. ALTERING MARKS OR BRANDS-POISONING STOCK. SEC. 25. Every person who shall maliciously alter the mark or brands of any horse, mare, gelding, ass, mule, sheep, goat, cattle, or hog of another, or mark or brand any such animal, with intent to steal the same, or maliciously poison any such animals, if the value of the animals so poisoned or marked be five dollars or upward, shall be subject to the punishment inflicted on those guilty of grand larceny; and if the value of such animal be less than five dollars, such person shall be subjected to the punishment inflicted on those guilty of petit larceny. 2 R. S. 436. CHARGES. 1. Marking with intent to steal. in the year at said That A. B., on the day of county, unlawfully and feloniously did mark a certain hog of the personal property of C. D., then and there being, and of the value. of six dollars, by then and there unlawfully and feloniously cutting a swallow fork on the right ear of said hog, with intent, then and there, the said hog feloniously to steal, take, carry, lead, and drive away. 2. Poisoning cattle, etc. That A. B., on the day of in the year at said Embezzlement-Defalcation. county, unlawfully, feloniously, and maliciously, poisoned and killed a certain cow of the personal property of C. D., then and there being, and of the value of twenty dollars, by then and there unlawfully, feloniously, and maliciously mixing and mingling a large quantity of a certain deadly poison called arsenic, to-wit, onehalf pound of said arsenic, with a certain quantity of water then and there contained in a certain vessel, to-wit, five gallons of said water, and then and there unlawfully, feloniously, and maliciously giving and administering the said arsenic so mingled with the said water as aforesaid to the said cow. 1 SEC. 8. EMBezzlement-DEFALCATION. SEC. 1. Every president, director, cashier, secretary, treasurer, teller, clerk, book-keeper, agent, or other employe of any bank, banking company, corporation, or association, and every president, director, secretary, treasurer, conductor, book-keeper, clerk, agent, or other employe of any railroad company, corporation, or association, or of any insurance company, turnpike, or plank-road company, or of any telegraph company or association, and every clerk, treasurer, cashier, book-keeper, or other person in the employment of any merchant, trader, manufacturer, or person, company, or association of persons engaged in any business whatever, who, while in such employment as aforesaid, shall purloin, secrete, or in any way whatever fraudulently appropriate to his or her own use, or to the use of others, or knowingly permit any other person to take, purloin, secrete, or in any way to appropriate to his or her use, or to the use of others, any of the moneys, coins, bills, notes, credits, choses in action, or other property or article of value belonging to or deposited with any such bank, banking company, or association, or any such railroad company, corporation, or association, or any such insurance company, telegraph company, turnpike, or plank-road company or association, or any such merchant, trader, manufacturer, or person, company, or association of persons engaged in business as aforesaid, in whose employment he or she may be, shall be guilty of embezzlement, and upon conviction thereof, and presentment or Embezzlement-Defalcation. indictment, shall be fined in any sum not less than one nor more than five hundred dollars, and be imprisoned at hard labor in the state prison not less than two nor more than twenty years. Act Dec. 21, 1865. 2 R. S. 449. CHARGE. That A. B., on the day of in the year at said county, was the clerk of the Tenth National Bank, in the city of New Albany, and being such clerk, he, the said A. B., then and there feloniously and fraudulently purloined, secreted, and appropriated to his own use five hundred dollars of the moneys belonging to said bank, to-wit, fifty pieces of the current gold coin of the United States, commonly called eagles, of the value of ten dollars each. Bicknell's Crim. Pr. (2 ed.), 485. Object of the act.-The act to punish embezzlement (Acts. Spec. Sess. 1865, p. 204) was intended only to punish acts not before made criminal; and though the language of the first section might seem broad enough to cover any felonious taking by a servant of his master's goods, yet construed in connection with the second section, it can not be held to embrace any taking which before would have been larceny. 28 Ind. 321. See 2 Whart. Crim. Law, $ 1905. Embezzlement and grand larceny-Motion to elect.-Where a defendant is indicted in separate counts in the same indictment for embezzlement and grand larceny, it is not error for the court to refuse to require the state to elect on which count he shall be tried. 36 Ind. 406. Fiduciary relation of defendant.-The distinguishing features which divide embezzement from larceny (the fiduciary character of the defendant), must be specially averred in the indictment. Whart. Crim Law, § 1940. Money of a corporation, received by the treasurer thereof, is the property of the corporation; and, if he converts it to his own use, it is embezzlement. 10 Gray (Mass.), 173. 2. Defalcation of officers. SEC. 1. Any sheriff, clerk of the circuit court, clerk of the court of common pleas, county treasurer, justice of the peace, constable, marshal of any city or incorporated town, or any Embezzlement-Defalcation. officer or agent of any county, township, incorporated town, or city, who shall fraudulently fail or refuse, at the expiration of the term for which he was elected or appointed, or at any time during such term, when legally required by the proper person or authority, to account for and pay over to such person or persons as may be lawfully entitled to receive the same, all moneys which may have come into his hands by virtue of his said office, shall be deemed guilty of a felony, and upon conviction thereof, upon indictment, shall be imprisoned in the state prison, for any period not less than one year nor more than five years, and fined in any sum not exceeding onethousand dollars, and rendered incapable of holding any office of trust or profit. Act March 1, 1855, 2 R. S. 450. CHARGE. day of in the year day of That A. B., on the at said county, was duly elected as county treasurer of the county of aforesaid, to serve until the in the year That shortly after such election the said A. B. was duly qualified, and entered upon the duties of his office, and continued therein until the expiration of his term, on said day of, in the year aforesaid, at which time the said A. B. there had, in his hands, the sum of ten thousand dollars of the moneys which he had received, during his said term, by virtue of his said office; and that on the day last aforesaid one C. D., who, on the day of in the year had been duly and legally elected as the successor in office of the said A. B, as county treasurer of said county, was duly qualified as such, and entered upon the discharge of the duties of his said office; and that afterward, on the same day of, in the year aforesaid, the said C. D., being then and there the proper person, lawfully entitled to receive all the moneys which had come into the hands of the said A. B. by virtue of his office, then and there legally demanded of the said A. B. the said ten thousand dollars, and then and there demanded of the said A. B. to pay or account to the said C. D. for all moneys which had come into the hands of the said A. B. by virtue of his office as aforesaid, and which was then a balance left in his hands, after having deducted all credits and expenditures to which he was legally entitled; but that the said A. B., then and there, unlawfully, feloniously, and fraudulently failed and refused, and has ever since Malicious trespass. failed and refused, to pay the said ten thousand dollars, or account for the same, or any part thereof, to the said C. D. or any other person lawfully authorized to receive the same. Section 51 of the fee and salary act (1 R. S. 481) provides that said act shall not be so construed as to repeal the act to prevent the, defalcation of officers, etc., approved March 1, 1855, which is the act herein set out. Constable failing to pay over money.-Indictment, in two counts, against a constable for failing to pay over money. The first count charged a demand for the money by the execution plaintiff, and a failure to pay him. The second count charged a failure by the constable, on the expiration of his term of office, to pay the amount to the justice of the peace. The indictment was predicated upon the act of 1855. Held, 1. That by § 3, 2 R. S. 480 (2 R. S. 1876, 648), it was optional with the constable to pay the money over to either the execution plaintiff or the justice, and the act of 1855 does not change the law. 2. The first count was bad, for not averring nonpayment to the justice; and an averment, in the count, that the defendant then and there had the money, referring to the time when he collected it, does not aid the defect. The count should have alleged a failure to pay either the justice or the execution plaintiff. 3. That the second count was bad, for not averring nonpayment to the execution plaintiff. 4. That each count, in an indictment, must be sufficient in itself; that averments in one count can not aid defects in another. 10 Ind. 482. SEC. 9. MALICIOUS TRESPASS. SEC. 13. Every person who shall maliciously, or mischievously injure, or cause to be injured, any property of another, or any public property, shall be deemed guilty of malicious trespass, and be fined not exceeding twofold the value of the damage done, to which may be added imprisonment not exceeding twelve months. 2 R. S. 462. That A. B., on the CHARGES. 1. Injuring a house. in the year— at said county, unlawfully, maliciously, and mischievously injured, and caused to be injured, a certain house, situate in said county, the |