I think- the jury could well have found from the -evidence that Meadows, the defendant, acted in good faith and without intent to defraud Silverthorne, in .using the check in question, and -that ' Silverthorne himself did not expect that the identical check or the" proceeds thereof would- be transmitted, to .the Hew York correspondents to pay for the stock. .Silverthorne was -not inexperienced. . He was a man of affairs; had dealt in stocks, and presumably was familiar with the' way in which the business of dealing in stocks is conducted. He knew that the stock had been bought" by Meadows, Williams & Co.; .that the purchase price or some partliereof had been paid, or at least that Meadows, Williams & Co.' had obligated themselves personally therefor. . He regaz-ded. the firm as perfectly responsible. A day or two after the check was given and used he asked Meadows to retain the proceeds of the sale of certain other stock and allow him the Interest thereon. Front the final transaction in transmitting the check, and the other, circumstances, the conclusion is permissible that the check was ip tended *239as payment to Meadows, Williams & Co.-upon.their personaLagreement absolutely to sell and- deliver the stock to Silverthorne, aiid not merely for transmission by Meadows, Williams & Co. to-the New York brokers.
The Silverthorne check is., dated May 22, 1908, and on the next day the check was indorsed b'y-Meadows, Williams & Co. and delivered to the Baiik of Buffalo,.and the amount thereof, credited by the bank to the firm. -On the same day three other deposits were made and credited tó the same- account. The account was an active one, consisting of daily items of credit and debit, and continued so for some time. Checks were drawn against the account, among others one for $28)000, the same day the Silverthorne cheek was used, payable to the orderof Post & Flagg, through whom Meadows, Williams & Co. had purchased the stock intended for delivery to Silverthorne. The check was not applied upon that specific purchase, however, but generally upon- the account which Meadows, Williams & Co.'had with Post & Flagg.
It is unnecessary to refer to the numerous checks which were drawn by Meadows, Williams & Co. upon the Bank- of Buffalo, after the delivery of the Silverthorne check" and- Crediting the amount thereof, or to the different items of credit in their account with the bank.
The question of criminal intent, as it was finally left to the jury, was that it is only necessary that the intent to deprive or defraudSilverthorne existed at the time the money was checked out and used. I am unable to see how that could be so. The crime charged, if committed at all, was committed when the check was used and not when the defendant drew the firm checks upon the general account. There "was no specific money in the bank, represented by the Silverthorne check, which belonged either to Siiverthorne or -to Meadows,.Williams & Co. Immediately upon Using the check the relation between the bank and Meadows,. Williams .& Co. was that of debtor and creditor. But even if the defendant can be convicted of the crime of embezzlement in drawing checks in the firm name upon the bank against the general credit balance, created in part by the improper use of the Silverthorne check, that was not the charge contained in the indictment.
I do not say that the drawing of these checks by Meadows may *240not be a proper circumstance bearing upon the question as to whether the use of the Silverthorne check was fraudulent or not; but that is not the question.
The case of People v. Civille (44 Hun, 497), relied upon to Support the charge as made, is unlike this case,- as it seems to me. There it appeared that the check representing the embezzled funds was deposited in a special account, in the name of Civille, the defendant, as trustee, and the amount was thereafter paid by the bank to him and-misappropriated. The wrong there consisted in using the money which had been paid over to him by the bank upon this trust account, and that was the crime charged. Here the wrong charged was in using the check and having the amount thereof credited to the personal account of the firm. At all events, that was the only transaction proven which would be consistent, with the charge contained in the indictment. If it was intended to charge the defendant with embezzlement in misappropriating the moneys represented by the firm checks drawn by him, that charge should have been made specifically in the indictment, and the par: ticular transaction set forth, naming the amount, the time, and other details constituting the offense.
It does' not seem to me that the conviction can be upheld upon any such theory. If so, upon which of the numerous checks does the conviction rest? It cannot be successfully claimed that Meadows had no right to draw any checks after the Silverthorne check had been used at the bank, since the firm had a credit balance there before the check was so deposited, and, as has been said, that is not the charge contained in the indictment.- The offense set up in the indictment is the entire amount of the Silverthorne check charged, as one act of embezzlement or larceny, as it is defined by the Penal Code.
I think the judgment of conviction should be reversed and a new trial ordered.
Judgment and orders affirmed.