There are two statutes in this state upon the subject of embezzlement. The one is to be found in Battle’s Revi-sal, ch. 32, § 16, where the offence is made a misdemeanor, and the other, in section 136 of the same chapter, where it is made a felony. The latter is the act of 1871-’72, ch. 145, § 1, and in the following words:
“If any officer, agent, clerk or servant of any corporation, or any clerk, agent or servant of any person or corporation (except apprentices and other persons under the'age of sixteen years) shall embezzle or fraudulently convert to his own use, or shall take, make way with, or secrete with intent to embezzle or fraudulently convert to his own use any money, goods or other chattels, bank-note, check or order for the payment of money, issued *660by or drawn on any bank or other corporation, or any treasury warrant, treasury note, bond or obligation for the payment of money issued by the United States or by any state, or any other valuable security whatever, belonging to any other person or corporation, which shall have come into his possession or his care, virtue of such office or employment, he shall be deemed guilty of felony, and upon conviction thereof shall be punished as in case of larceny.”
The defendant’s- counsel moved in arrest of judgment upon several grounds, one of which was that the bill of indictment-does not allege that the defendant is not within the age of eighteen years. The counsel evidently mistook the act under which the bill of indictment was intended to be drawn. It is section 16, chapter 32, in which the exception is made of persons under the age of eighteen years; but the indictment is for a felony, and must therefore fall under section 136, and the exception there is of persons under sixteen years of age. But it can make no difference, for the indictment is defective, whether prepared under either act.
Tiie rule is well established, if there be an exception contained in the same clause of the act which creates the offence, the indictment must show, negatively, that the defendant or the subject of the indictment does not come within the exception. Arch. Cr. Pl., 53; State v. Heaton, 81 N. C., 542. Far this defect in the indictment, the judgment should have been arrested.
As a new bill of indictment will perhaps be prepared against the defendant, we would suggest that the draftsman look somewhat particularly into the difference between our act of 1871-’72, and the act of 7th and 8th George IV., ch. 29, § 4, under which the indictment was framed, which was used as a precedent in this case. The English statute declares embezzlement to be larceny, but ours only makes it a felony, punishable as larceny.
There is error in the refusal of the judge to grant the motion in arrest of judgment.