¶1Opinion by
¶2The defendant’s contention that the indictment was irregularly found is rebutted by the third reason given in the motion to quash, viz: “ The indictment was preferred in pursuance of an order of court, made upon petition of the district attorney and private counsel of the prosecutor, and without notice to the defendant.” It is well settled that an indictment may be laid before the grand jury in this manner, the procedure being under the supervision of the court: Com. v. Green, 126 Pa. 531; Com. v. Swallow, 8 Pa. Superior Ct. 539; Rosenberger v. Com., 118 Pa. 77. Notice to the defendant, at this stage of the proceeding, is not required, though it appears in fact to have been given in the present case. Moreover, the indictment was based on an information, hearing and binding-over. The previous finding of an indictment on the same information was no bar to the subsequent indictment. Piad both been in the district attorney’s hands the defendant could have been tried on either. Should he now be tried on the first, the record of his conviction on the second will sustain a plea oE autrefois convict.
¶3*316The claim of a right to discharge under the “ two-term rule ” is without foundation. The delay hi bringing the case to trial appears to have been due wholly to the defendant.
¶4It cannot be doubted that an indictable offense is charged. The indictment alleges that the defendant was duly appointed guardian of James E. Hill, a minor; that on the adjudication of Ms account as guardian he had in his hands, due said minor, $948.40 ; and that he did fraudulently, unlawfully make way with, embezzle and convert to his own use and purpose the said sum of $948.40, with interest, to cheat and defraud the said minor, and James Ruth, the surety on his bond as guardian. This charges an offense substantially in the language of the act of March 31, 1860, section 113, which provides that “ If any person, being a trustee of any property for the benefit, either wholly or partially of some other person, or for any public or charitable purpose, shall, with intent to defraud, convert or appropriate the same, or any part thereof, to or for his own use or purpose, or the use or benefit of any other person, or shall with intent aforesaid, otherwise dispose of or destroy such property, or any part thereof, he shall be guilty of a misdemeanor.” Section 124 of the same act, in defining the meaning to be given to the word “trustee,” while embracing executors and administrators, omits guardians. The supplemental act of April 22, 1863, however, provides that this section “ shall also extend to and include any guardian or guardians of a minor child or children appomted by the orphans’ court of the respective counties, in the same manner as executors, administrators and assignees.” The contention that this act is judicial in character, in prescribmg the construction to be given to the act of 1860, cannot be sustaMed. The act of 1863 and section 124 of the act of 1860, are alike in character; they fix the scope of the word “trusts,” as employed in section 113, and define the sense in which it is used. That this word embraces a guardian has been judicially determined: Wentzel’s Appeal, 160 Pa. 252; Ex parte Blumer, 86 Pa. 371.
¶5The evidence shows, without contradiction, that the defendant made no distinction between his own money and thatwliich he is charged with having embezzled. Part of the latter he used M paying his own debt, and another portion was lost through an investment in his own name. It further shows *317that a few days after the settlement of .his account he confessed a judgment to his brother, on which an execution was issued and all his personal property sold, while his real estate had become incumbered to at least its full value, leaving nothing from which the amount due his ward could be collected. It is also alleged by the commonwealth, but denied by the defendant, that to induce the prosecutor to become surety on his bond as guardian he falsely represented that Iris brother was also to be a surety. It is contended by the commonwealth that an intent to defraud was formed by the defendant on his appointment as guardian, and the evidence as to these matters was offered in support of this view, as showing bad faith throughout. It is not material, however, when the intent was formed, nor how long it was entertained. Conversion of the trust fund to any other use than that of the cestui que trust is prima facie fraudulent, and the trustee’s failure to pay on settlement of his account is evidence of such conversion. In the present case there is no evidence to rebut the presumption of a fraudulent conversion arising from default of payment. As cumulative evidence of intent, it was competent for the commonwealth to show a fraudulent purpose in the assumption of the trust. The evidence on this point was certainly admissible; its weight was for the jury to determine; and if it fell short of proving the alleged intent it did the defendant no harm.
¶6The seventh specification is without merit. The charge, including the portion here assigned for error, is a careful, accurate and lucid 'statement of the law as applied to the case in hand; and in its references to the evidence it is eminently fair to the defendant.
¶7Nothing in the assignments requires further discussion. The record showing no error, the judgment is affirmed.
¶8dissents.