Theft, as distinguished from embezzlement, is taking property of another from the possession of the owner, with intent to defraud." Embezzlement, as distinguished from theft, is taking property of another in the *270possession of the accused, with intent to defraud. The crimes are essentially the same; but most unfortunately are, for the purposes of prosecution, entirely distinct. The one demands, as an essential element a trespass, a breach of technical possession; the other cannot be committed unless the element of trespass or breach of technical possession is absent. The former is a crime at common law; the latter is a statutory offense.
In this State embezzlement was not made a crime until 1829. It was not mentioned in the Digest of Judge Swift, because it was not a crime at the time he wrote. In the editions published since his death it is not mentioned, except in a single brief form. We have never had occasion to discuss the statutes which, since 1829, have created the different offenses classed as embezzlement. There are only three reported cases under the statutes, and these involve a very slight consideration of the nature of the crime. The offenses, however, are governed by the rules common to all statutory offenses, and these rules are well settled.
The case before us is a prosecution under § 1580 of the General Statutes, which provides that “ any agent of any private individual, who shall take, purloin, secrete, or in any way appropriate to his own use, or to the use of others, any of the goods, moneys, or choses in action, belonging to such individual, with intent to defraud another,” shall be imprisoned. The conditions of the offense under this provision, as charged in the complaint, are: an agency within the meaning of the statute; specific property the subject of the crime, i. e., things that are within the meaning of the statute, either goods, moneys, or choses in action; receipt of the property specified, by an agent on behalf of the person who is the principal ; ownership by the principal of the property so received by the agent—an ownership, however, unaccompanied by the technical possession of the principal essential to the crime of theft; and an appropriation of the property by the agent with intent to defraud.
No claim is made that these elements of the crime are not properly alleged. . The property which is the subject of the *271crime is described as “the sum of sixty-three dollars.” This is equivalent to “ sixty-three dollars in money,” or “ certain money of the amount of sixty-three dollars; ” or, as stated in the form in Swift, “ ten eagles.” The complaint does not charge the embezzlement of any goods, nor of any chose in action; unless it charges the embezzlement of “moneys,”no crime is charged. The complaint, therefore, alleges that the accused, Hanley, being the agent for that purpose of one Episcopo, did receive and take into his possession for said Episcopo, certain moneys of the amount of sixty-three dollars, and with intent to defraud said Episcopo did appropriate to his own use said moneys belonging to said Episcopo.
It appears from the record that the trial disclosed, as conceded, the following facts: On December 6th the firm of Abbott Brothers owed Episcopo $230, and Episcopo owed Hanley $167 ; Episcopo drew an order on Abbott Brothers for $230, in favor of Hanley, which order was accepted by Abbott Brothers “payable December 18th,” and, so accepted, was received by Episcopo in payment of the debt due him. On December 6th or 7th Episcopo delivered the order to Hanley. On December 18th, one Lowe presented the order to Abbott Brothers, who paid the amount ($230) to said Lowe.
The State claimed also to have proved that at the time of the delivery of the order to Hanley he agreed, as agent of Episcopo, to collect the order when it became due, to pay from the amount collected his own claim of $167, to pay $11 or $12 to one Smith, and $15 to one Welton (to whom said Episcopo was severally indebted in said amounts), and to remit the balance to said Episcopo; and that Hanley assigned and delivered said order to Lowe to whom it was paid.
The defendant claimed to have proved that no agreement of agency was made by him; that shortly after the delivery of the order he paid Episcopo in cash the difference between the amount of the order and the amount of Episcopo’s debt to him; and that he transferred and delivered the order to Lowe in payment of a bill he owed Lowe.
The controlling fact to be found from conflicting evidence was the fact of agency. As to this the testimony was in *272direct conflict, and undoubtedly the attention of tbe jury was centered on this contested fact. But there was in the case the further fact, equally essential to guilt, that Hanley in pursuance of the agency did, as charged in the information, “ receive and take into his possession ” and fraudulently appropriate to his own use, money belonging to Episcopo. This fact was not directly the subject of conflicting testimony, but had to be inferred from other facts; and an accurate statement by the court of the law applicable to the facts, was essential to its determination by the jury. It is in the statement of this law that the court below has erred. The accused requested the court to charge that “ even if it was proved that the defendant delivered the order on the Abbott Company to attorney Lowe, and Lowe collected the same and appropriated the proceeds thereof to the payment of the defendant’s debts with the consent of the defendant, that this would not constitute embezzlement under our statute.” The request does not accurately express the essential point of law the accused was entitled to have stated. For this reason, perhaps, the appeal does not specify as error the refusal of the court to charge as requested; it does, however, assign as error, in the fifth reason of appeal, the charge as giveu. The court tells the jury, in stating to them the law applicable to the facts as claimed by the parties, that if the accused received the order upon an agreement of agency as claimed by the State, and if “instead of collecting the money and disposing of it as agreed, he endorsed that order over to his own creditor, and thus paid Iris own debts with the money, that would be such an appropriation as would be contemplated by this statute; ” meaning, of course, that it would be an appropriation of moneys received by Hanley and belonging to Episcopo.
The error here is plain. Whether the sale of that order to a bona fide purchaser, under the circumstances detailed, would or would not be the embezzlement of a chose in action, within the meaning of the statute, is not the question; the only question is, would it be the embezzlement of money, the property of Episcopo ? Until that order became due, Episcopo owned no money in the hands of Abbott Bros., or *273of Hanley; there was no money which could he the subject of the crime. Abbott Bros, might pay the order with money, and if that money came into the possession of Hanley he might embezzle it. But he could not embezzle it before payment and possession; because the existence of money as the subject of the crime, and its possession by the agent, are essential elements of the crime as alleged. If the charge of the court is correct, then the crime of embezzling the money of Episcopo was complete when Hanley transferred the order to Lowe in satisfaction of an existing debt. This cannot be true, unless the charge of embezzling “moneys ” maybe sustained by proving the’ embezzlement of goods or of ehoses in action. We deem it clear that this section of the statute defines the subjects of embezzlement substantially as the subjects of theft are defined. Whatever difference there may be between theft and embezzlement in following the identity of articles specified in the indictment, the kind of property which is the subject of the crime charged must in both cases be proved as alleged.
If the indorsement to Lowe was a mere cover, so that Lowe became, not the Iona fide owner of the chose in action, but only the agent of Hanley to receive the money for him, and Hanley directed the misappropriation of the money so received, then the crime as alleged was complete. It may be possible that the testimony might have justified the jury in finding that Hanley’s claim of an assignment or sale to Lowe in satisfaction of a debt, was not true, and that Hanley collected the order and received the money and appropriated it to his own use after it came into his possession. But the court was bound (whether requested to do so or not) to properly submit this question to the jury; and could not take it from them by an instruction that Hanley’s sale of the order before it was due, in satisfaction of a debt, was conclusive proof of the allegation that he received into his possession money belonging to Episcopo, and appropriated that money to his own use. The apparent cause of the error lies in the assumption that before the accepted order was due, Episcopo owned “ moneys,” within the meaning of the stat*274ule, in the hands of Abbott Brothers; and that these moneys while in the hands of Abbott Brothers were in the possession of the agent Hanley, and were the subject of embezzlement by him as “moneys,” under the statute. Possibly the error arose from confounding the relation of agency under § 1580, with the relation of a trustee of an express trust to his trust fund, under § 1579. However that may be, the error was a material one; it might have been and probably was decisive of the question of guilt or innocence of the crime charged.
The other errors assigned furnish no ground for a new trial. Those specified in the first three reasons of appeal relate to the refusal of the court to charge in respect to matters which do not appear to have been pertinent to the complaint and proof. The ruling on evidence specified in the fourth reason was unobjectionable. The 6th reason is too general to be considered.
The motion for a new trial for a verdict against evidence, is denied.
There is error, the judgment of the Superior Court is set aside, and the cause remanded for further proceedings according to law.
In tins opinion Tobbance and Baldwin, Js., concurred; Andbews, C. J., and Hall, J., dissented.