The indictment in this case strictly pursues the form given in the Code, (p. 702, form 36,) and is sufficient. — Noles v. The State, 24 Ala. 672; Elam v. The State, 25 Ala. R. 53; Burdine v. The State, 25 Ala. 60; Sherrod v. The State, 25 Ala. 78; Thompson v. The State, *59425 Ala. 41; Salomon v. The State, 27 Ala. 26; Rogers v. The State, 26 Ala. 76.
[2.] The main question raised by the discussion in this case is, was the act of the prisoner, for which he was indicted, larceny or embezzlement ? For the prisoner it is urged, that he was not guilty of embezzlement, because the bill of exchange had been in the possession of the employer, before it came into the possession of the prisoner as his clerk; and under these circumstances, the conclusion is claimed, that, if he subsequently disposed of it fraudulently, cum amino ferandi, and without authority, he is guilty of larceuy. The English decisions upon their statutes of 3d and 4th George, come fully up to this doctrine. — See them collected in 2 Bish. Cr. Law, § 301, notes 1, 2, 3, 4. This principle, if it be applied to our statute, must work a reversal of this case.
We think, however, that there is a substantial difference between the English statutes and ours. Their first enactment was 21 Henry VNI, ch. 7. It declared, that when any “caskets, jewels, money, goods, or chattels,” were delivered to servants by their masters or mistresses, “to keep, if any such servant or servants withdraw him or them from their said masters and mistresses, and go away with the said caskets,” &c., “to the intent to steal the same,” &c. It is obvious that this statute had but a restricted operation.
The statute of 39 George HI, ch. 85, declared, that “ If any servant, or clerk, or if any person employed for the purpose in the capacity of servant or clerk, to any person or persous whomsoever-, or to any body corporate or politic, shall, by virtue of such employment, receive or take into his possession any money, goods, bond, bill, note, bankers’ draft, or other valuable security or effects, for, or in the name, or on the account of his master or masters, employer or employers, and shall fraudulently embezzle, secrete, or make away with the same,” &c.
The later statute 7 and 8 Geo. IV, ch. 29, employs language of similar import to that which I have underscored above. Its language is, “ receive or take into his possession,” &e., “for, or in the name, or on the account of *595bis master, and shall fraudulently embezzle tbe same,” &c.
The words in the English statutes copied above, for, or in the name, or on the account of his master, show clearly that the money, goods, &c., to come within those statutes, must have been taken or received from some person other than the master and employer. To say that a clerk received or took goods, &c., from his employer, for, or in the name, or on the account of said employer, would be a palpable solecism. We think the English decisions upon their statutes are manifestly correct.
Our statute, Code, § 8143, contains no such clause as that copied and commented on above. Its language is, “ Any officer, agent, or clerk of any incorporated company, or clerk or agent of any private person or copartnership, except apprentices and other persons under the age of eighteen years, who embezzles, or fraudulently converts to his own use, any property of another, which has come into his possession by virtue of his employment, must, on conviction, be punished as if he had feloniously stolen such property.”
The language of this section is much more comprehensive than either of the English statutes. It embraces and provides punishment for every case of embezzlement of property of another, which has come into the possession of the clerk or agent by virtue of his employment. The bill of exchange mentioned in the record was the property of another, and it went into the possession of the prisoner “by virtue of his employment” as clerk of Sengstag. The case is within the very letter of the statute.
The New York statute — 2 Rev. Stat. 678, § 59 — is substantially like ours, on the question we have been considering. — See 2 Bish. Crim. Law, § 302, note 2. Ye have no doubt that our legislation on this subject, although not verbally identical, was taken from the New York statute. See Clay’s Digest, 421, § 31; Code, § 3143. The New York statute had been construed in that State before our penal code was adopted. — See People v. Sherman, 10 Wen. 298; People v. Dalton, 15 Wend. 581. With their decisions, the views here expressed harmonize fully.
If it be objected that, under our construction, couvic-*596tions for embezzlement may be had upon facts which constituted larceny at common law, we answer that, conceding it to be so, we know of no principle which denies to the legislature power to make such provision. There is nothing in the case of Case v. The State, 26 Ala. Rep. 17, which militates against these views.
The city court committed no error in the reception of evidence ; and the charge was strictly in accordance with the views above expressed.
Judgment of the city court affirmed.