¶1The defendant was convicted upon the first count in the indictment. That count was evidently drawn under section 28, chap. 165, R. S. But it is clear that this section does not apply to the case. It only applies to embezzlement by common carriers, and others in like capacity, carrying property for hue, and persons who may be entrusted with such property by the carrier to be carried to its destination. This is the construction placed upon a similar statute in Massachusetts, and we think it is the correct one. Commonwealth v. Williams, 3 Gray, 461; see likewise the case of Commonwealth v. Smart, 6 Gray, 15.
¶2Although the indictment shows that the defendant was guility of a gross breach of trust in appropriating the money to his own use, yet it fails to state an offense under section 28. And being thus fatally defective, no further proceedings can be had upon it; but the judgment of the circuit court must be reversed, and the defendant discharged.
¶3By the Court. — Ordered accordingly.