(dissenting). Respondent was charged by information with the offense of embezzlement as an agent, not being an apprentice nor other person under the age or 16 years, of money which came into his possession as such agent, and he converted, whereby he was guilty of larceny. This prosecution was under section 9151, How. Stat., which punishes the embezzlement by such an agent of money or .property coming into his hands in that capacity as larceny. When arraigned the defendant pleaded neither guilty nor not guilty, but made a statement which the circuit court treated as a plea of guilty. Under an order of this Court the record below was corrected so as to show precisely what respondent did say, and the sentence is now before us on the error assigned, that' it did not amount to a plea of guilty of the offense charged, and did not authorize any sentence without trial, and especially did not justify the sentence given.
*483The answer by respondent to the arraignment was in these words:
“ As an attorney at law, I am guilty of embezzlement of thirty-five hundred (§3,500.00) dollars; that being the amount collected and received by me, less my reasonable fees as such attorney for collecting the money.”
If we were acting as censors of morals, we could not hesitate to say that respondent’s act was as wrong in character as the act charged in the prosecution. ' But no one can be lawfully sentenced unless convicted on trial or plea of guilty of the precise crime alleged. The embezzlement made punishable by section 9151 is made larceny because differing from common-law larceny only in the absence of an original felonious taking. It covers what if taken without authority would be the subject of larceny. It is “ money or property ” which comes into the possession or is under the charge of the agent as belonging specifically to the principal. It is not applicable to fraud or breach of trust, where there is no ownership in the employé of specific property or funds, and where the wrong done consists in failure to account and pay over what is or may be only a part of some other sum collected officially and due on such accounting. That sort of malversation is embezzlement, but, as there is no punishment at common law for embezzlement as such, each class of cases is governed by express statute, and must come within some specific regulation. Section 9151 imposes no penalty on the embezzlement, which it makes criminal, and it is only because it is declared larceny that any punishment is ascertainable. The punishment, therefore, is governed by the value of the theft, and may be greater or less. The amount involved on the record made it a State prison offense. A smaller amount would have brought a less liability.
The only statute which covers the failure to pay over *484balances by attorneys applies to collections in such capacity, and the offense is not made out until a demand has been made and refused or not complied with. Section 9152. This offense has been made a misdemeanor, and not a felony, and is made punishable in the same way without reference to the amount, so far as imprisonment is concerned, by imprisonment not more than a year. A fine of not more than four times the amount retained may be added or substituted. Under section 9151, cases-may arise within the jurisdiction of a justice of the peace. In People v. Donald, 48 Mich. 493 (12 N. W. Rep. 669), this was pointed out as depending on value. Under section 9152, a justice can have no jurisdiction. The distinction is made in several cases between such embezzlement as is made larceny and that which involves an accounting on demand or under some legal requirement. These provisions have been adopted from time to time, and have attached different consequences to the crimes, although such a construction as is insisted on here by the’ prosecution would make several of them mere repetitions. In the case of People v. Tryon, 4 Mich. 665, section 9152 was involved, and the judgment was reversed because the indictment did not distinctly show the relationship of attorney and client as existing between the parties concerned. In the absence of section 9152, the failure by an attorney to pay over balances would be nothing more than a breach of contract. The law has been on our statute-book in one way or another a long time. The non-imprisonment act of 1839 allowed arrest “for moneys collected by any public officer, or for any misconduct or-neglect in office, or in any professional employment." It was held in Bronson v. Newberry, 2 Doug. 38, that this provision only reached persons actually employed by reason of professional character, and did not - reach persons having no such position, although doing similar work. *485The same rule was applied in Pennock v. Fuller, 41 Mich. 153 (2 N. W. Rep. 176). And in People v. McAllister, 19 Mich. 215, where the charge made in an affidavit for capias showed the receipt of large sums of money by an agent on sales, and the refusal to account for and pay •over a balance of between one and two hundred dollars, it was held that the showing was for no more than a breach of contract, and would not sustain an action of tort.
The legislation of this State, civil and criminal, has kept separate professional misconduct and violations of •duty as agents, and there are readily ascertainable reasons for so doing in the differences which may honestly arise ■on questions of compensation and accounting. It is never safe to let considerations of the hardship or demerit of a single case destroy distinctions which are expressed in the law. It is an easy matter to amend statutes, but it is not the business of courts to change the legislative meaning. The act confessed by respondent was not a felony, and the information was for a felony. The plea was not -a plea of guilty under the information, and, when the prisoner failed to plead to what he was charged with, he should have been put upon his trial. Our practice does not allow special pleas on the merits. The only special pleas' in bar relate to former proceedings. A plea of guilty outside of the record is no plea, and cannot support a conviction. Its peculiar form should have drawn .attention to it.
The judgment should be reversed, and the prisoner discharged from State prison.