Opinion of the Court. was similar to the control which a section foreman exercises over the men in his section; and, following its construction of the decisions of this court in the Baugh and Hambly cases, the Circuit Court of Appeals for the Eighth Circuit has held that a section foreman is a fellow servant of a member of his crew, and that one of the crew injured by the negligence of the foreman could not recover. Kansas & Arkansas Valley Railway v. Waters, 70 Fed. Rep. 28. In Potter v. N. Y. Central & Hudson River Railroad, 136 N. Y. 77, employés of a railroad company, while switching cars in the company's yard, under the direction of a yardmaster, shunted a number of cars onto a track so that they collided with a car being inspected, and caused the death of the inspector. It was claimed that proper and reasonable care required that there should have been a brakeman on the front of the cars to control in an emergency their motion, when detached from the engine. In the absence of allegation of proof to the contrary, the court presumed that competent and sufficient servants were employed, and proper regulations for the management of the business had been established, and observed (p. 82): "It is quite obvious that the work of shifting cars in a railroad yard must be left in a great measure to the judgment and discretion of the servants of the railroad who are entrusted with the management of the yard. The details must be left to them, and all that the company can do for the protection of its employés is to provide competent coservants, and prescribe such regulations as experience shows may be best calculated to secure their safety." We adopt this statement as proper to be applied to the case at bar. A personal, positive duty would clearly not have been imposed upon a natural person, owner of a railroad, to supervise and control the details of the operation of switching cars in a railroad yard; neither is such duty imposed as a positive duty upon a corporation; and if O'Brien was negligent in failing to place himself or some one else at the brake of the backwardly moving cars, such omission not being the performance of a positive duty owing by the master, the plaintiff in error is not responsible therefor. Statement of the Case. These conclusions determine both questions certified for our decision, and, accordingly, the first question is answered in the affirmative, and the second in the negative. So answered. MR. CHIEF JUSTICE FULLER, MR. JUSTICE FIELD, and MR JUSTICE HARLAN dissented. 160 40 L-ed s 16 SC 294 187 3196 MOORE v. UNITED STATES. ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE No. 719. Submitted November 20, 1895.- Decided December 23, 1895. 268 A count in an indictment which charges that the accused, "being then and 59 100 The count having been demurred to, and the demurrer having been over- PLAINTIFF in error, late assistant postmaster of the city of Mobile, was indicted and convicted of embezzling certain moneys of the United States to the amount of $1652.59. There were four counts in the indictment, to one of which a demurrer was sustained, and upon two others defendant was acquitted. The fourth count, upon which he was convicted, charged that "the said George S. Moore, being then and there an assistant, clerk, or employé in or connected with the busi Opinion of the Court. 100 ness or operations of the United States post office in the city of Mobile, in the State of Alabama, did embezzle the sum of sixteen hundred and fifty-two and 5% dollars ($1652.59), money of the United States, of the value of sixteen hundred and fifty-two and 5% dollars ($1652.59), the said money being the personal property of the United States." 100 Moore, having been sentenced to imprisonment at hard labor, sued out this writ of error. Mr. M. D. Wickersham and Mr. W. H. McIntosh for plaintiff in error. Mr. Assistant Attorney General Whitney for defendants in error. MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court. Defendant was indicted under the first section of the act of March 3, 1875, "to punish certain larcenies, and the receivers of stolen goods," 18 Stat. 479, which enacts "that any person who shall embezzle, steal, or purloin any money, property, record, voucher, or valuable thing whatever, of the moneys, goods, chattels, records, or property of the United States, shall be deemed guilty of felony," etc. The principal assignment of error is to the action of the court in overruling a demurrer to the fourth count of the indictment, which charges, in the words of the statute, that "the said George S. Moore, being then and there an assistant, clerk, or employé in or connected with the business or operations of the United States post office in the city of Mobile, in the State of Alabama, did embezzle the sum of money of the United States, of the value of the said money being the personal property of the United States." Embezzlement is the fraudulent appropriation of property by a person to whom such property has been entrusted, or into whose hands it has lawfully come. It differs from larceny in the fact that the original taking of the property was lawful, Opinion of the Court. or with the consent of the owner, while in larceny the felonious intent must have existed at the time of the taking. It is objected to the indictment in this case that there is no direct allegation that defendant was an assistant, clerk, or employé in or connected with the business or operations of the post office at Mobile; that the money of the United States is not identified or described, and that there is no allegation that it came into the possession of the defendant by virtue of his employment. The act in question has never been interpreted by this court, nor has our attention been called to any case where it has received a construction in this particular, except that of McCann v. United States, 2 Wyoming, 274, decided in the territorial Supreme Court of Wyoming, in which the allegation was that "McCann, at and within the district aforesaid, twenty thousand pounds of sugar. of the goods, chattels, and property of the United States of America, then and there being found, then and there feloniously and fraudulently did embezzle, steal, and purloin," etc. This allegation was held to be defective in charging a mere legal conclusion, "leaving it impossible to determine whether the offence was committed, and the conclusion correct." It was said that the indictment for this offence must set forth the actual fiduciary relation and its breach; that the indictment did not identify the offence on the record; and did not secure the accused in his right to plead a former acquittal or conviction to a second prosecution for the offence. It was held that the words "to embezzle" were equivalent to the words " to commit embezzlement," and that a count in the words of the statute was not sufficient; that "all the ingedients of fact that are elemental to the definition must be alleged, so as to bring the defendant precisely and clearly within the statute; if that can be done by simply following the words of the statute, that will do; if not, other allegations must be used." The general principle here alluded to has been applied by this court in several cases. United States v. Carll, 105 U. S. 611; United States v. Cook, 17 Wall. 168; United States v. Cruikshank, 92 U. S. 542. In the case of United States v. Northway, 120 U. S. 327, Opinion of the Court. the word "embezzle" was recognized as having a settled technical meaning of its own, like the words "steal, take, and carry away," as used to define the offence of larceny. In this case the allegation was that the defendant "as such president and agent" (of a national bank) "then and there had and received in and into his possession certain of moneys and funds of said banking association and then and there being in possession of the said" defendant "as such president and agent aforesaid, he, the said " defendant, "then and there wrongly, unlawfully, and with intent to injure and defraud said banking association, did embezzle and convert to his own use." In respect to this it was said to be quite clear that the allegation was sufficient, as it distinctly alleged that the moneys and funds charged to have been embezzled were at the time in the possession of the defendant as president and agent. "This necessarily means," said the court, "that they had come into his possession in his official character, so that he held them in trust for the use and benefit of the association. In respect to those funds, the charge against him is that he embezzled them by converting them to his own use. This we think fully and accurately describes the offence of embezzlement under the act by an officer and agent of the association." In the case of Claassen v. United States, 142 U. S. 140, an allegation similar in substance and effect was also held to be sufficient. The indictment, said the court, "avers that the defendant was president of a national banking association; that by virtue of his office he received and took into his possession certain bonds, (fully described,) the property of the association; and that, with intent to injure and defraud the association, he embezzled the bonds and converted them to his own use. On principle and precedent, no further averment was requisite to a complete and sufficient description of the crime charged." The cases reported from the English courts, and from the courts of the several States, have usually arisen under statutes limiting the offence to certain officers, clerks, agents, or servants of individuals or corporations, and the rulings that the |