left temple, causing a mortal wound on the right temple.34 In some states an error of this nature is cured by statute. An averment that the act was done with malice aforethought must be incorporated in an indictment for murder.35 As a rule the averment is made that the act was done wilfully, or with intent to kill; but omission to so allege is not fatal to the indictment.36 In some states murder is divided by statute into two or three degrees, and in a few of these states an indictment for murder in the first degree must allege all facts necessary to constitute this degree of the offense. But usually the old form of indictment for murder is sufficient. The following is a typical form of indictment for murder by violence: at "That John Doe, on with force and arms, in and upon one Richard Roe, in the peace of the state then and there being, did make an assault, and that the said John Doe, with a certain club, of large size and weight, to wit, two feet long and weighing four pounds, which he, the said John Doe, in both his hands then and there had and held, the said Richard Roe, in and upon the left side of the head of him, the said Richard Roe, then and there feloniously, wilfully, and of his malice aforethought, did strike and bruise, giving the said Richard Roe, then and there, with the club aforesaid, in and upon the said left side of the head of him the said Richard Roe, one mortal wound, of which said mortal wound the said Richard Roe then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, 34 Dias v. State, 7 Blackf. (Ind.) 20, 139 Am. Dec. 448; State v. Robinson (La.), 78 So. 933; State v. Allen, 98 Kans. 778, 99 Kans. 187, 160 Pac. 795. 35 State v. Scott, 38 La. Ann. 387; McElroy v. State, 14 Tex. App. 235. 36 State v. Harris, 27 La. Ann. 572; 1 Hale P. C. 466; State v. Robinson (La.), 78 So. 933; People v. Falkovitch, 280 I11. 321, 117 N. E. 398; McDonald v. Commonwealth, 177 Ky. 224, 197 S. W. 655; Burnett v. Commonwealth, 172 Ky. 397, 189 S. W. 460. do say that the said John Doe, the said Richard Roe, then and there, in manner and form aforesaid, feloniously, wilfully and of his malice aforethought, did kill and murder; against the peace of the said state, and the form of the statute in such case made and provided. § 933. Indictment for larceny.-The correct form of the indictment for larceny is very simple. The following is typical of the form used at common law: at That John Doe, on one cow, of the value of more than forty dollars, of the property of Richard Roe, feloniously did steal, take, and carry away. And so the jurors aforesaid, upon their oath aforesaid, do say, etc. § 934. Indictment for embezzlement.-The accused can not be convicted of embezzlement on an indictment for larceny unless it is so authorized by statute.37 The statutes provide for this, in some states, and they have been held constitutional. While it is not necessary to state particulars in alleging the offense, and an averment only that the accused "embezzled" certain property is enough,38 it is essential to state the exact nature of the fiduciary relation existing between the victim and the person accused, and it is necessary to allege that the property was received by him by virtue of this relationship.39 The particulars of the employment, however, are not necessary in the indictment. 40 The following is a typical form of indictment for embezzle ment: 37 Kibs v. People, 81 Ill. 599; Commonwealth v. King, 9 Cush (Mass.) 284. 38 Nelson v. State, 50 Fla. 137; Mills v. State, 53 Nebr. 263, 73 N. W. 761; State v. Marx, 139 Minn. 448, 166 N. W. 1082; State v. Campbell, 99 Wash. 502, 169 Pac. 968; State v. Chaplain, 101 Kans. 413, 166 39 Flenner v. State, 58 Ark 98, 23 S. W. 1; People v. Tryon, 4 Mich. 665. 40 State v. Poland, 33 La. Ann. 1161. at ------) "That John Doe, on ------, being then and there the agent of Richard Roe, did by virtue of his said employment receive and take into his possession ten silver dollars, of the value of ten dollars, for and in the name and on the account of the said Richard Roe, and afterward did then and there fraudulently embezzle the same; and so the said John Doe did then and there, in the manner and form aforesaid, the said ten silver dollars, the property of the said Richard Roe, his principal, from the said Richard Roe, feloniously steal, take, and carry away. And so the jurors do say all of which the said John Doe then and there knew." § 935. Indictment for false pretenses.-An indictment for false pretenses is of a very complex character, and it is necessary to set out the pretense with great particularity. It is not sufficient to allege in the words of the statute that the property was obtained by false pretenses; the nature of the pretense must be substantially alleged, though not necessarily according to its tenor.41 In the indictment it must be clearly shown that the pretense related to a past or existing fact or circumstance and was not merely an expression of opinion or a promise;42 that it was knowingly false, and was made with the intention to deceive;43 that it was calculated to defraud, and actually did defraud.44 The indictment for false pretenses has been simplified to some extent in some states. In Massachusetts, the statute provides that the crime of false pretenses may be incorporated into one crime together with larceny and embezzlement, and that proof of either of the three offenses is sufficient to support the indict ment. 41 State v. Tatum, 96 Miss. 430; State v. Switzer, 63 Vt. 604; 22 Atl. 724; 25 Am. St. 789; People v. Butler (Cal. App.), 169 Pac. 918. 42 Reg. v. Henshaw, Leigh & C. 444. 43 Maranda v. State, 44 Tex. 442. 44 Clifford v. State, 56 Ind. 245; Enders v. People, 20 Mich. 233. The following typical form of indictment for false pretenses, at common law, is sufficient: "That John Doe, on, at, feloniously devising to cheat and defraud Richard Roe, did then and there falsely and feloniously pretend to the said Richard Roe that (set forth the pretense), by means of which false pretenses he, the said John Doe, did then and there fraudulently and feloniously obtain of the said Richard Roe, of the property of the said Richard Roe (describing said property), of the value of ______, whereas in truth and fact (specifically denying the truth of the pretenses alleged) all of which the said John Doe then and there knew. 46 § 936. Analogous offenses.-Larceny, embezzlement and false pretenses are analogous crimes. In the former two, however, the defendant does not acquire title to the property appropriated. In an indictment for the larceny of a check, ownership may be alleged in different persons.15 While in an indictment for larceny it is essential to allege the value of the property stolen, it is not necessary to prove the amount as charged. Where ownership of the property stolen is alleged in A and the proof shows that A was in possession of the property on consignment there is no variance.47 An indictment for larceny must sufficiently describe the property stolen.48 An indictment for the larceny of a branded cow need not allege or describe the brand, but where it is alleged as descriptive of the stolen animal a material variance between the allegation and proof is fatal.49 In an indictment for larceny ownership of the stolen property may be laid in 45 Allen v. Commonwealth (Va.), 94 S. E. 783. 46 State v. Curry, 103 S. Car. 338, 88 S. E. 27 (alleged value $65, value proved $20); People v. Demsey, 283 Ill. 342, 119 N. E. 333. 47 Smith v. State (Ind.), 118 N. E. 954, L. R. A. 1918 D, 688. 48 Adams v. State (Ga. App.), 94 S. E. 82. 49 Smith v. State (Fla.), 76 So. 774. 50 an agent, but not in a mere servant.5 The conviction of an agent for larceny by embezzlement is not dependent upon the scope or duration of the agency.51 Repayment of the money embezzled or an attempt to do so, does not bar or impede the prosecution.52 In an indictment for embezzlement the property appropriated should be described with the same degree of particularity as in the case of larceny.58 But the term "shotgun" constitutes a sufficient description of the property embezzled.54 The crime of false pretenses must be alleged with sufficient definiteness and clearness.55 To sustain an indictment for obtaining money by a confidence game the proof must show that the money was obtained by reason of the confidence reposed in the defendant by his victim.56 50 Jackson v. State (Ga. App.), 94 S. E. 55. 51 State v. Campbell, 99 Wash. 502, 169 Pac. 968. 52 State v. Campbell, 99 Wash. 502, 169 Pac. 968. 53 Henderson v. State (Fla.), 78 So. 427. 54 Henderson v. State (Fla.), 78 So. 427. 55 Blanck v. State (Okla. Cr.), 169 Pac. 1130. 56 People v. Gallowich, 283 Ill. 360, 119 N. E. 283. See also, People v. Dempsey, 283 Ill. 342, 119 N. E. 333; People v. Koelling, 284 Ill. 118, 119 N. E. 993. |