majority"> Avery, J.:

Embezzlement has been called a statutory larceny because of the fact that the earlier English statutes were thought to be but declaratory of the common law, that certain acts therein mentioned were punishable as larceny. 2 Bishop Or. Law, Secs. 319, 320, 327, 1. The *270 last act passed in this State (Code, Sec. 1014, Laws 1871-76, Ch. 145, Sec. 2) extends the scope of the law so as to bring within its terms an agent, servant or employee “ of any corporation, person or partnership ” who should “ embezzle or fraudulently convert to his owm use-any money, goods or other chattels_which shall come into his possession or under his care,” and by providing that “ lie shall be deemed guilty of a felony and punished as in cases of larceny.” 2 Wharton Or. Law, Sec. 1917 (d). The use of the word embezzlement in this statute is but another mode of describing the fraudulent, misappropriation of the goods of the employer to the employee’s or agent’s own use. 2 Bishop, supra, Sec. 325, 1 & 2. The warrant upon which the plaintiff was arrested referred to the affidavit or complaint of J. A. Jones, one of the defendant firm, and thereby made it a part of the process. The complaint sets forth,amongst other things, that J. S. Durham did unlawfully and willfully, knowingly and designedly, by means of false representations, obtain ice from J. A. Jones and A. M. Powell, trading as Jones & Powell, with intent to cheat and, defraud Jones & Powell of said ice, saying he would retain a certain part of the proceeds of the sale of said ice, after said Jones & Powell had been paid in full, whereas he intended to convert the whole of the proceeds of the sale of said ice to his own use or to appropriate the ice itself, having beforehand made an arrangement with one W. T. Saunders to ship said ice to his ice-house and pay him out of the proceeds of said ice or with the ice itself an account said Durham owed said Saunders ; that the ice was to be sold from the ice-iiouse of said Saunders, and that said Durham was to purchase from him so much as not to include the money owed said Saunders, and the said arrangement was carried into effect contrary, &c.” It is proper to premise that the law does not intend or require that a *271 justice of the peace shall describe a criminal offence in a warrant, issued for the purpose of preliminary examination, with the same legal accuracy as is necessary in an indictment. But the comp aint does aver: 1, That there was such an agreement as constituted the plaintiff the agent of Jones & Powell to sell ice for them, paying them a certain proportion of the proceeds of sale, and talcing the residue as his compensation for selling. 2, That he then entertained the fraudulent purpose of converting the whole of the ice or the proceeds of its sale to his own use, by applying it in discharge of his own debt. 3. That he carried the said arrangement, to so misappropriate the proceeds of sale, into effect. In words that could not have been misunderstood the warrant put the defendant on notice that he was charged with agreeing to constitute and constituting himself an agent for Jones & Powell, and with fraudulently misappropriating the goods and money of these defendants that came into his hands in that capacity. There was also testimony that tended to prove the agency as well as the wrongful misappropriation.

In view of the.nature of the charge in the warrant and the evidence offered in support of it, the court erred in restricting the defendants to showing probable cause that the plaintiff was guilty of cheating by false pretenses, and in refusing to charge as requested in instruction Number 7 in the prayer of the defendants, to-wit, That “ if the jury believe from the evidence that the plaintiff agreed with the defendant, J. A. Jones, as a member of the firm of Jones & Powell, that if the defendant firm would ship him a car-load of ice he would sell the ice by retail for cash, and out of the first moneys received set apart a sufficient amount to pay Jones & Powell for said ice and as their money, and the said Jones ifc Powell shipped the plaintiff, Durham, a car-load of ice; and if the jury believe from the *272 evidence that the plaintiff, Durham, received the said ice under said agreement, and sold the same and failed to set apart the first moneys received therefor for said Jones & Powell, and to pay them for said ice ; and if the jury believe from the evidence that at the time of said contract with Jones & Powell for said ice the plaintiff, Durham, had made an arrangement with one Saunders to put said ice in his ice-house, and, being indebted to said Saunders, had agreed with him that he could have a certain amount of said ice to pay his debt, and delivered to said Saunders such amount of said ice and if the jury believe that either Jones or Powell had knowledge of these facts and circumstances at the time said warrant was procured, then the defendants had probable cause to institute said prosecution, and the jury will answer the first issue ‘ No. ’ ”

It is clear that no question could have been raised about the form of the warrant, if the justice of the peace had required the plaintiff (the defendant in the warrant) to give bond for his appearance at the superior court, whether the solicitor deemed it best to draw an indictment for cheating by false pretenses or embezzlement.

It is not material to pursue the inquiry whether there was testimony sufficient, if tr„ue, to show' probable ground for believing that the plaintiff was guilty of cheating by false pretenses. The testimony of Powell and Strong was in support of the complaint, and tended to show the agency of the plaintiff and the fraudulent misappropriation of goods and money that passed into his hands in that capacity. If the testimony of Jones, which is embodied in substance in the prayer for instruction, was believed by the jury, then their finding, thrown into the shape of a special -verdict, would have been that the plaintiff was the agent of the defendants for the purpose mentioned, and converted to his own use money and chattels that passed *273 into his bands as agent, and the jury might have drawn, the inference and found that it was done with a felonious and fraudulent intent.

We have forborne to discuss the case in the light of the decision in Oakley v. Tate, 118 N. C., 361, wherein Chief Justice Eaikoloth for the Court announced the general principle that a complainant could not be “held responsible for an error committed by a justice.” It is not necessary to determine how far, if at all, that principle applies to the case before us. Conceding that when the fact that the plaintiff was discharged by the justice for want of sufficient proof was shown,the burden was cast upon the defendants to rebut a grima, facie case, it is manifest that it was competent for them to relieve themselves of that burden by showing that there was probable cause as to an offence charged in the warrant.

It was therefore for the jury to determine, under proper instructions, whether there was probable cause for believing that any criminal offence, coming within the terms of the complaint or charge, had been committed by the plaintiff. The court misled the jury in restricting their inquiry to the question whether probable cause had been shown as to the charge of cheating by false pretenses, and erred when, in effect, that inquiry was answered for them in the charge. In refusing to instruct the jury as requested, and substituting the charge given, there was error which entitles the defendants to a new trial.

New Trial.

ClarK, J., did not sit.

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