The defendant, having been indicted for the crime of grand larceny under Penal Code, § 428, demurred to the indictment, specifying numerous objections, all of which may be included in the general .objection that the facts stated do not constitute a public offense.
The trial court, having overruled the demurrer, certified to this court, under 1878 G. S. ch. 117, § 11, five questions, which may also be all summed up in one, viz. whether the facts stated in the indictment constitute a public offense. Trespass is an element in every larceny at common law. The effect of this statute making conversion or embezzlement by a trustee, etc., larceny, is merely to do away with the necessity of á trespass. It does not change the rules of pleading. The mere common-law form of indictment for larceny *150would not be sufficient. In an indictment under this statute the allegations must be special, and must state all the facts necessary to constitute the offense. State v. Henn, 39 Minn. 464, (40 N. W. 564:) State v. Vorey; 41 Minn. 134, (43 N. W. 324;) State v. Friend, 47 Minn. 449, (50 N. W. 692.)
The essential facts necessary to constitute larceny under this section are: First, that the person was acting as a trustee, etc., under appointment by will, deed, etc. Second, that the money or property alleged to have been stolen was in his possession by virtue of such office or appointment. Third, that he secreted or withheld it, or appropriated it to his own use, or to that of a person other than the true owner entitled to it.
We think the first two of these facts are sufficiently alleged, but that as to the third the indictment is fatally defective. It might, perhaps, have been sufficient if it had, as to some matters, alleged less; but by alleging what it does it became necessary to allege still more. The general allegations in the indictment must be deemed to be controlled and qualified by the allegations of specific facts upon which the general allegations are predicated. The general allegations that the defendant -withheld the money from the party entitled thereto, and appropriated it to his own use, are so limited and qualified by what follows as to amount merely to an allegation that he withheld it from Firth; and the general allegation that Firth was the person entitled to it is qualified by the statement of the specific facts from which that ownership is alleged to have resulted. Having assumed to set out specifically the facts constituting Firth’s right to the money, it was incumbent on the state to allege facts sufficient to show that right. In this the indictment is defective. All that is alleged might be strictly true, and yet Firth not be entitled to a dollar, and defendant have had a perfect right to retain and use the money for any or all of the purposes named in the 1st, 2d, 3d, and 5th subdivisions of that part of the trust deed which specifies the purposes for which he was to pay it out, or to which he was to apply it.
Order reversed.
Gilfillan, G. J., absent on account of sickness; took no part.(Opinion published 60 N. W. 1088.)