TERM, 1852.] Bertrand et al. vs. Barkman. case of confidence reposed, to that of a case where one trusts another with his blank endorsement to fill up for a particular amount, (which, in the language of Lord MANSFIELD, in the case of Russell v. Sangstoff, "is a letter of credit for an indefinite sum,") and that individual abuses the confidence thus reposed in him, and fills it up for a larger amount, and puts it into circulation even for a different purpose. For, in such a case, if it was commercial paper, and in the hands of a bona fide innocent holder, for value in the technical sense of the term, it may be recovered; if not for such value, it could not be. And so, if it was not commercial paper, it could be recovered on purely equitable grounds, either pro tanto, or wholly, according as the innocent holder parted with partial or full value, either in money, property, in the extinguishment of a pre-existing debt, or in the renunciation of some valuable right, upon the sole foundation of the transfer. And this, not only upon the principles of commercial policy, which, in such cases, is co-incident with equity, but upon the obvious principles of equity, that if by misplaced confidence one enables another to commit a fraud, it is but just that he pay the penalty of his own indiscretion, and that the loss should not be visited upon another who has vested his money or parted with his property or relinquished his valuable right on the faith of the genuineness of the signature, without any means of ascertaining the fraud. (8 Porter 297. 1 Ala. R. 18. 3 Ala. 188. 5 Ala. R. 370. 11 New H. R. 66. 1 Hill R. 513.) But in the case at bar, no money was paid or property given in exchange, nor debt extinguished, nor valuable right relinquished on the sole foundation of the transfer of the note in question. And, as before remarked, the same will be the result of the analogies to cases of the fraudulent transfer of property under peculiar circumstances of confidence reposed, accompanied by indicia of ownership. In every view, then, in which we have considered this case, and we have looked at it in all the various aspects in which it has been so ably presented by counsel, as well as examined the numerous authorities cited, we feel clear that the decree of the court below, in perpetuating the injunction, is correct. Affirmed. 3 168 2248 Fulton vs. The State. [JANUARY FULTON VS. THE STATE. In order to constitute larceny, there must be a taking of the goods either actual or constructive: and the felonious intention must exist at the time of the taking; otherwise, no subsequent felonious intention will render the previous taking felonious. The crimes of larceny and embezzlement are wholly separate and distinct, and the same evidence will not support an indictment for both offences. The 5th sec. of Art. 3, ch. 51, Dig., was designed simply to extend and lay down with greater particularity the crime of embezzlement, and make the punishment the same as in larceny. Evidence tending to establish the offence of embezzlement, is not admissible under an indictment for larceny; nor can the law defining the former and prescribing the punishment govern on an indictment for the latter offence. Appeal from Pulaski Circuit Court. THIS was an indictment for stealing a horse. The proof was that the owner loaned the horse to the prisoner to ride to a neighbor's house. The prisoner went to the neighbor's, and on the next day came to Little Rock, and sold the horse at public auction. Verdict of guilty and judgment. The defendant appealed. JORDAN and P. TRAPNALL, for the appellant. Evidence of embezzlement will not support an indictment for larceny, although the Rev., Stat. ch. 126, declare that a party who embezzles money or goods, shall be deemed by so doing to have committed the crime of larceny. Com. v. Simpson, 9 Metc. 138. There must be a trespass to support larceny. Felter v. The 5 Yerg. 154. The felonious intention must exist at the time of taking, else there can be no theft. 2 Stark. Ev. 606. The People v. Ander son, 14 J. R. 294. 3 Dev. 473. 1 Breese 277. East P. C. 694. 1 Ry. & M. 160. CLENDENIN, Attorney General, contra. Mr Chief Justice JOHNSON delivered the opinion of the Court. The appellant was indicted for the crime of larceny, and the first question presented, for the consideration of this court is, whether the charge is sustained by the proof. In order to constitute larceny, there must be a taking of the goods, either actual or constructive. An actual taking, is where the goods have been actually taken out of the owner's possession, against his will or without his consent; and a constructive taking, is where the owner delivers the goods, but either he does not thereby divest himself of the legal possession, or the possession of the goods has been obtained from him by fraud and in pursuance of a previous intent to steal them. See Arch. Cr. P. 274, and the authorities there cited. It is contended, in behalf of the appellant, that the indictment being for larceny, it is not sustained by the evidence, as that S could not establish a higher species of crime than that of embezzlement. The 5th sec. of Art. 3 of chap. 51, of the Digest, enacts that "If any carrier or other bailee shall embezzle or convert to his own use, or make way with, or secrete with intent to imbezzle, or convert to his own use, any money, goods, rights in action, property, effects or valuable security which shall have come to his possession, or have been delivered to him, or placed under his care or custody, such bailee, although he shall not break any trunk, package, box, or other thing in which he received them, shall be deemed guilty larceny, and, on conviction, shall be pun ished as in cases of larceny." It will be conceded by all, we think, that, before the passage of the act referred to, the crimes of larceny and embezzlement were wholly separate and distinct, and that evidence appropriate to support an indictment for the one, was not admissible to sustain one for the other. The true point, then, to be determined is, whether this statute was designed to confound the two offences, or, in other words, was it intended to extend the sphere and definition of larceny, and to recognize such facts as theretofore would only show an embezzlement, as being sufficient to sustain an indictment for larceny. We are of opinion that such a construction would not be fair and legitimate from the spirit and intent, or even from the words of the act. The act was not designed to dispense with the necessity of indicting for embezzlement, but simply to extend and to lay down, with greater particularity, the crime of embezzlement, and to raise the punishment to the same degree as that which was denounced against persons guilty of larceny. The case of The Commonwealth v. Simpson, reported in 9 Metcalf, at pages 141, 2 and 3, is strongly in point. In that case, the court said, "We have, however, at the request of counsel, and with reference to further proceedings in this case, considered the general question, whether an indictment for simple larceny is an appropriate and legal form for charging a case of embezzlement under the Rev. Sts., ch. 126, sec. 30. The statute, in express terms, says, that the persons doing certain acts 'shall be deemed, by so doing, to have committed the crime of simple larceny.' Treating this statute as one defining the offence of larceny, and, under the legislative authority, embracing within it a larger range of offences to be hereafter known and recognized as larcenies, it would well authorize all offences described in it to be charged as larcenies, relying upon the statute as an authority for the position, that the cases may be punished as larcenies, But we do not feel authorized to give so broad a construction to this statute, and one which would entirely merge the crime of embezzlement in that of larceny. The general object of the various statutes in relation.to embezzlement, in England and in this Commonwealth, doubtless was to embrace, as criminal offences punishable by law, certain cases where, although the moral guilt was quite as great as in larceny, yet the technical objection arising from the fact of a possession lawfully acquired by the party, screened him from punishment. They were therefore de clared crimes punishable by law. The purposes of this statute may, as it seems to us, be sufficiently attained without any infringement of those rules of criminal pleading which require the charge to be particularly and certainly set forth. The defendant should, as far as is reasonably practicable, be apprised by the indictment of the precise nature of the charge made against him. This, in embezzlement, so far as respects the nature of the offence or character of the crime charged, may be easily indicated by setting forth the fiduciary relation or the capacity in which the defendant acted, and by means of which the property came into his possession, and by charging the fraudalent conversion. Such seems to have been the practice under the English Sts. 21 Hen. 8, c. 7:39 Geo. 3, c. 35, and 52 Geo. 3, c. 63. See the forms of indictment in 3 Chit. Crim. Law, (4 Amer. Ed.) 961 et seq. Arch. Crim. Pl. (1st Ed.) 156. The court are of opinion that the two offences of larceny and embezzlement are so far distinct in their character, that, under an indictment charging merely a larceny, evidence of embezzlement is not sufficient to authorize a conviction; and that in cases of embezzlement, the proper node is, notwithstanding the statute to which we have referred, to allege sufficient matter in the indictment to apprize the defendant that the charge is for embezzlement. Although the party, in the language of the statute, "shall be deemed to have committed the crime of simple larceny," yet it is a larceny of a peculiar character, and must be set forth in its distinctive character. We conceive the two statutes to be substantially the same, and consequently subject to the same construction. If then evidence going to establish the offence of embezzlement, was not admissible under this indictment, it is clear that the court erred in reading the act concerning embezzlement to the jury, and in stating to them that that was the law by which the case must be governed, in case the evidence should be found sufficient to make out the offence contemplated by it. The court also erred in refusing to give in charge the second instruction submitted by the counsel for the appellant. This was, "That, unless the defendant had a felonious intention at the |