¶1concurs in paragraphs 1 and 8, and expresses no opinion as to paragraph 2. Thomas, J., concurs in paragraphs 1 and 3 and will express his views as to the point involved in paragraph 2 in a separate opinion. Judgment reversed, and the causo remanded.
¶2Thomas, J.—I do not concur in paragraph 2 of the foregoing opinion. I do not believe that section 3947, Revised Statutes, 1889, is in conflict with section 22 of our bill of rights, which provides that a party accused of crime shall have the right ‘ ‘ to demand the nature and cause of the accusation.” The word “embezzlement,” as used in section 3947, supra, I construe tornean that technical embezzlement which differs from larceny only in this: That the latter implies a wrongful’ taking, while the former does not. Larceny is defined to be the taking and removing by trespass of personal property, which the trespasser knows to belong, either generally or specially, to another, with the intent to deprive the owner of his ownership therein absolutely. If the words “by trespass” be eliminated from this' definition of larceny, we will have a definition of embezzlement as that word is used in this section. A party can be convicted of embezzlement under an indictment for larceny, and for larceny under an indictment for embezzlement, only when the wrong-doer takes money or property of another with the intent to deprive the-owner of his ownership therein absolutely. The gravamen of the charge in either case is the larcenous-intent, the animus furandi, of the wrong-doer. The relation the wrong-doer sustains to the owner of the property taken, either in larceny or embezzlement, is not an essential element of crime, and the legislature can, therefore, dispense with an averment of it. This view is supported by the cases of State v. Porter, 26 Mo. 201, and State v. Broderick, 70 Mo. 622. The cases of State v. Arter, 65 Mo. 653, and *659State v. Gabriel, 88 Mo. 632, are not in conflict witli tbe Porterand Broderick cases, supra, because in each of those cases the accused was indicted for a common-law larceny, and it was held he could not be convicted on evidence showing a statutory larceny. There is no statute authorizing such a conviction in such a case. But as to larceny and embezzlement we have an express statute, authorizing the conviction of the accused of one upon an indictment for the other, but no such conviction ought to stand unless the larcenous intent be proved, and found by the jury to exist. In the case at bar the court, in its definition of an embezzlement for which the defendant might be found guilty under an indictment for larceny, wholly omitted the element of the animibs furandi, and thus committed reversible error.