dissenting. I am unable to concur in the conclusion arrived at in the majority opinion. While I do not disagree with much that is therein said by my brother Bruce, and am willing to concede that defendant, under the record facts, was guilty of the grossest irregularities, and perhaps embezzlements, in the exercise of the trust reposed in him by the people of this state, I am compelled to the view that the jury, by.its verdict, in legal effect acquitted him of the crime charged in the information, and attempted to find him guilty of another and distinct offense not charged therein.
In this dissenting opinion I deem it unnecessary to consider any other point in the case, and shall merely endeavor to briefly make clear my views upon the one point above mentioned.
The verdict finds the defendant guilty of embezzling the sum of $54.65. This is the exact amount of the interest draft, Ex Í05, sent to defendant at his request by the Elaxton bank, and it is entirely clear that this check constitutes the item for the embezzlement of which the jury found defendant guilty. The record unmistakably demonstrates this to be a fact. To justify the verdict, therefore, the court must be able to say that such item is embraced within the charge contained in the information, for, of course, it is elementary that a *80person cannot legally be convicted of an offense of which he has not been formally accused. The inquiry, therefore, logically arises as to whether such draft is embraced within either count of the information. And this suggests the thought that, inasmuch as concededly but one offense may be charged in such information, each count thereof must necessarily relate to the same offense or criminal transaction, merely stating or alleging the same to have been committed- in different forms or methods. Turning to the information, we find that defendant is charged in each count with having embezzled items aggregating the sum of $60,438.11, and turning to the evidence of the state in chief we find proof of five specific items consisting of drafts and checks aggregating that amount to the cent, and for which sum defendant, on January 3, 1911, held certificates of deposit issued by the Bowbells bank, and it is strikingly apparent that the check for $54.65 is not included therein. Manifestly, the same could not be included therein for the obvious reason that there is no pretension that such item was embezzled by depositing or loaning the same or the proceeds thereof to the Bowbells bank, and the items as charged in each count, as before stated, must be held to be the same, for otherwise separate offenses .are alleged. Therefore it cannot be correctly said that count one embraces the $54.65 item. This item was not mentioned nor heard of in the state’s main case, nor until near the close of the trial, and on the cross-examination of the defendant on rebuttal, when the samo was accidentally disclosed. It is stated in the majority opinion that there is no merit in the appellant’s contention that the testimony as to the fact that the $54.65 item was not entered upon the books was elicited in rebuttal. It is said: “The order of proof is largely within the control of the trial court and his discretion must largely control. The -defendant admitted that he had received the amount, and it is quite conclusively shown that he received it in the course of a series of fraudulent transactions. On cross-examination he stated that he did not know whether it had been accounted for or not. At the end of the trial and on rebuttal, the witness Mrs. Mitchell testified that the item had not been credited to the state. The only objection made to her testimony was that the testimony was ‘not the best evidence, incompetent as such, irrelevant, and immaterial.’ . . . There was no *81objection made that sneb a question was not proper on rebuttal, and tbe point here made does not seem to have been specifically raised on the trial.”- The majority opinion then states in conclusion that the allowance of such testimony was within the trial court’s discretion, and also that the objection was not sufficiently specific in form to raise the point. This portion of the opinion must have been written on the assumption, which I think is erroneous, that the $54.65 item is embraced in the information, for otherwise it cannot be justified under any rule or decision, so far as my knowledge extends. I have no quarrel with the abstract propositions of law therein stated, but I do not think they apply in the case at bar. It requires no argument tó show that a citizen ought not to be sent to the penitentiary for an offense which he has neither been charged with nor convicted of, except through the failure of his counsel to interpose technically proper objections. Even conceding his guilt of such offense, the interests of the state do not demand his conviction in such a manner. Quite the contrary is true. Courts will not ordinarily resort to technical rules in order to sustain a conviction, especially a conviction of an offense not charged. The crucial and decisive question on the point under consideration, therefore, is as to whether this item of $54.65 is included as a portion of the funds covered in the information. In answering this question we must not overlook the fact that in employing three separate counts in the information the public prosecutor did not and could not have intended to charge more than one offense or criminal transaction, and each count must be construed as alleging merely different methods of embezzling the same funds. These different methods might have been charged in one count, provided they were stated in the alternative. This proviso also applies where different counts are employed, but the pleader seems not to have observed this in drawing the information in question. However, this failure is not material to the point we are here discussing.
A fair test as to whether the $54.65 item is included in the information is whether a conviction or acquittal Under such information could be successfully urged in bar of an attempted prosecution under another information specifically charging the embezzlement of such check. I think it could not.
*82In the majority opinion it seems to be assumed, however, that the charge in the information is a general charge, entitling the state to maintain the same by proof of the embezzlement of any items involved in any of the transactions relating to the defendant’s official duties as treasurer; but I think such assumption is clearly unauthorized. If the pleader had seen fit to specify and minutely describe each of the four or five drafts and checks aggregating the sum of $60,438.11, I apprehend it could not be argued that such charge would be general, so as to authorize proof of the embezzlement of any other drafts or checks; yet the pleader just as effectually described these items aggregating $60,438.11 as though he had mentioned them in detail, for he saw fit to characterize them as having been wrongfully turned over to the Bowbells bank. This effectually excluded items not thus misappropriated, and precluded the state from proving such other items.
Had the state seen fit to charge in general terms that defendant embezzled at a certain time or during a certain period, public funds entrusted to him as state treasurer, consisting of moneys, drafts, checks, etc., aggregating a certain sum or a sum in excess of a certain designated amount, by feloniously converting the same to his own use or to the use of another, I am willing to concede that the state would have a wider latitude in proving the charge, and perhaps it might, under such general allegation, properly have proved the embezzlement of the $54.65 interest item aforesaid. But where, as in this case, the state’s attorney has elected to specifically point out and identify the particular funds claimed to have been embezzled, by alleging the precise manner in which such acts of embezzlement were committed, as by .appropriating and converting the same to the use of the First State Bank of Bowbells, as charged in count two; or by loaning the same to said bank, as charged in count three, I think the state should be restricted in its proof to funds thus specifically designated, and which it has elected to single out in this manner. By such election it seems to me that the state has, in legal effect as it had the right to do, excluded other funds or embezzlements from the information. I do not believe that the authorities cited and relied upon in the majority opinion, when carefully examined, will be found to hold otherwise.
The case of Ker v. People, 110 Ill. 627, 51 Am. Bep. 706, 4 Am. *83Grim. 211, cited in the majority opinion, and therein quoted from at length, is, I think, plainly distinguishable from the case at bar. That portion of the quotation after the stars is somewhat misleading, because it refers not to language preceding the stars, but to a statutory rule in Illinois (§ 82 of the Criminal Code) which is held controlling.
The foregoing views, inadequately expressed, afford sufficient reasons why I think the conviction should not be upheld, and I deem it unnecessary to express any opinion upon the other questions presented.
I am authorized to state that Mr. Chief Justice Spalding concurs in these views.