87

CANAL ZONE V. PETERSON & SILVERS.

5th. That the court erred in overruling defendants' motion to dismiss at end of plaintiff's case, which raises the question that the evidence offered by the Government did not establish a prima facie case of embezzlement; and
6th. That the court erred in rendering judgment against the defendants at the conclusion of the case; which raises the same question upon the whole testimony as that raised in the fifth assignment for the case as presented by the Government alone.
We will consider the assignments of error in the order in which they are here stated.
The motion for a bill of particulars applied to informations No. 43 7 to No. 441 inclusive, wherein the articles alleged to have been embezzled, together with the accompanying values of each were not specifically set forth. The motion for a bill of particulars raised the question of the necessity for such particularization. Quoting from section 85 of the Code of Criminal Procedure of the Canal Zone as to informations for the larceny or embezzlement of money, bank notes, etc., counsel for appellants argue that for all goods of any other nature whatsoever, alleged to have been embezzled, it is necessary that the same be accurately listed and valued. We think the informations in this respect were sufficient. Section 368 of the Penal Code of the Canal Zone provides as follows:
Every person-guilty of embezzlement is punishable, in the manner prescribed for feloniously stealing property of the value of that embezzled; and where the property embezzled is an evidence of debt, or right of action, the sum due upon it or evidenced to be paid by it, shall be taken as its value; Provided, That if the embezzlement or defalcation be of the property or public funds of the
-United States, the Isthmian Canal Commission, or of the Government of the Canal Zone, the offense is a felony * *
This provision, we think, shows that the embezzlement of any property of the Isthmian Canal Commission, regardless of the value thereof, is a felony. When such is the case the value of the property is immaterial and need not be alleged nor proven, provided it manifestly appears that the articles alleged to have been so embezzled are of some value. (Clarke and Marshall's 'Criminal Law, secs. 441 and 505. Bishop's New Criminal Law, vol. 1, p. 541. Am. and Eng. Ency. of Law, vol. 10, p.,, 985.)
Now, it would be absurd to say that such articles as those set forth in these informations, namely, pork chops, chickens, cutlets, pork sausage, etc., were valueless, and being of some value, as we must know, it follows that the general all egations, in the information were sufficient.