Johnson vs. Commonwealth.

saying more on a question which seemed rather an incidental one in the cause.

But the construction of section 409, Civil Code, given by this court in Marr's adm'r vs. Prather, supra, has been adhered to in the later case of Dehoney vs. Sandford 2, Bush, 169; nor are the cases in conflict when understood.

As, therefore, the defendant failed to answer, and the record does not show that proof was heard in the court below as to the value of the whisky, the judgment must be reversed, and the cause remanded for a new trial, and for further proceedings consistent herewith.

CASE 26-INDICTMENT-JUNE 25.

Johnson vs. Commonwealth.

APPEAL FROM JEFFERSON CIRCUIT COURT.

1. INDICTMENT FOR EMBEZZLEMENT.-"The said William Johnson, in said county of Jefferson, on the 1st day of November, 1868, being at the time in the employ as a servant of Press Means, did fraudulently and feloniously convert to his own use various treasury notes of the United States, of various sizes and denominations, of the value of nine dollars and fifty cents, and various national bank bills, currency of the United States, of various denominations, and of the value of nine dollars, the property of Press Means, being the price of sand hauled and delivered to Holbrook by said Johnson, as the servant of said Means, and with the collection of which he, the said Johnson, was intrusted by the said Means, contrary," &c. Held-The facts stated in the foregoing specific charge in the indictment are sufficient to constitute a public offense under the statute in relation to embezzlement,

Johnson vs. Commonwealth.

2. Section 2, article 12, of chapter 28, of the Revised Statutes, in relation to embezzlement, embraces all persons who are guilty of fraudulently secreting or converting to their own use, the money or property of others intrusted to them, or placed in their hands for the purpose of being carried or delivered.

Revised Statutes, sec. 2, art. 12, 1 Stanton, 391.

JUDGE HARDIN DELIVERED THE OPINION OF THE COURT:

The appellant, William Johnson, indicted for embezzlement, was convicted and sentenced to confinement in the Penitentiary for one year. He now seeks a reversal of the judgment on the ground that the court erred in overruling a motion in arrest of the judgment, for insufficiency of the indictment. The specific charge is, that

"The said William Johnson, in said county of Jefferson, on the 1st day of November, 1868, being at the time in the employ as a servant of Press Means, did fraudulently and feloniously convert to his own use, various treasury notes of the United States, of various sizes and denominations, of the value of nine dollars and fifty cents, and various national bank bills, currency of the United States, of various denominations, and of the value of nine dollars, the property of Press Means, being the price of sand hauled and delivered to Holbrook by the said Johnson, as the servant of said Means, and with the collection of which he, the said Johnson, was intrusted by the said Means, contrary," &c.

Johnson vs. Commonwealth.

It is insisted for the appellant, that the facts stated do not constitute a public offense under the statute in relation to embezzlement.

According to section 121 of the Criminal Code, an indictment must contain "a statement of the acts constituting the offense, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended."

The second section of article 12, of chapter 28, of the Revised Statutes, provides,, that "if any carrier, porter, or other person, to whom money or other property or thing which may be the subject of larceny may be delivered to be carried for hire, or any other person who may be intrusted with such property, embezzle, or fraudulently convert to his own use, or secrete, with intent to do so, any such property, either in mass or otherwise, before delivery thereof at the place, or to the person to whom the same were to be delivered, he shall be confined in the penitentiary not less than one nor more than five years."

It is contended for the appellant, that the offense which this provision of the statute was intended to embrace is restricted to the fraudulent conversion or secretion of money or property by carriers, porters, and others, who may be specially engaged in carrying and delivering money or property for hire, and that it does not embrace the acts of ordinary servants who receive, or are intrusted with, money or property in the busi-: ness of their employers; but, as we construe the statute, it has a more comprehensive meaning, and embraces all persons who are guilty of fraudulently secreting or converting to their own use the money or property of others intrusted to them, or placed in their hands, for the purpose of being carried or delivered.

Pulliam, &c., vs. Jennings.

The facts constituting the offense are, we think, sufficiently stated in the indictment, and the court properly refused to arrest the judgment.

Wherefore, the judgment is affirmed.

CASE 27-PETITION EQUITY-JUNE 25.

Pulliam, &c., vs. Jennings.

APPEAL FROM GARRARD CIRCUIT COURT.

The occupant, having occupied a tract of land for about seven years, and improved it in good faith, believing it to be his own property, being evicted by a superior title, he is, in equity, entitled to the ameliorations so far as his labor and money, expended in good faith, have enhanced the value of the land, to be estimated at the time of eviction; and he is liable for the use of the land as unimproved by him, and also annual interest on that value.

JUDGE ROBERTSON DELIVERED THE OPINION OF THE COURT:

The appellants having recovered a judgment against the appellee for a fraction over five acres of land, which he had occupied and improved for about seven years, in good faith, believing it to be his own unquestionable property, he is, in equity, entitled to the ameliorations which they have no equitable right to VOL. V-28

Pulliam, &c., vs. Jennings.

enjoy without retribution, so far as his labor and money, expended bona fide, have enhanced the value of the land.

This principle is too familiar and well settled by authority to require elaborate illustration. The circuit court, recognizing the application of this principle to the facts of this case, yet charged the appellee with annual rent, and interest thereon, and charged the appellants with the cost of the improvements and interest; and, on a commissioner's report, made on that basis, adjudged in his favor a balance of sixty-two dollars and ninety-eight cents.

The true rule of assessment has not been followed. The appellee is only entitled to the accessory value of the improvements estimated at the time of eviction, and, consequently, he is not entitled to cost or antecedent interest. And the appellants are not entitled to rents on improvements made by him for making the use of the land more profitable; but their rents must be graduated by the value of the use of the land as unimproved by him, and also annual interest on that value.

What would be the result of estimates made according to that reciprocal rule this court cannot ascertain from the present record, and, consequently, vexatious as it may unfortunately be to the parties in so small a case, an approximation to justice with judicial certainty requires a reversal of the judgment, and a resubmission to the commissioner for adjustment of the rents and ameliorations according to the standard just defined.

Wherefore, the judgment is reversed, and the cause remanded for further proceedings conformably with this opinion.