(after stating the facts). In every indictment, certainty to a certain extent, in general, is all that is required, and everything should be stated which is necessary to constitute the offence charged, or which, bv necessary implication, is included in what is alleged, Arch. Cr. PI., 44.
We infer from the statement in this indictment, that the prosecutor had been the agent of the defendant Harper, in collecting certain rents, and there had been an action before a Justice of the Peace by the defendant, to recover these rents from the prosecutor, and the defendant had failed to recover ten dollars which he alleges the prosecutor had received and refused to pay over.
The threatning letter set out in the indictment, was to force the prosecutor to pay this money. Whether the ten dollars was really due to the defendant, or whether' the refusal to pay over the amount, was such an appropriation of the same as to constitute the offence of embezzlement, we are not called upon to *939decide. The only question for ns to consider is, did the defendant, by the letter set out in the indictment, threaten to indict the prosecutor, if he did not pay over the ten dollars in ten days.
The defendant’s counsel contended, that the letter did not make a threat of indictment, but had reference to a civil suit, and most probably an appeal from the Justice’s judgment. If that was so, most clearly this indictment could not be sustained. The first part of the letter might lead to that conclusion, when he says: “ If you do not pay, I am going to put the case before the Superior Court in October.” But he subsequently says: “If you don’t, pay, I am sure going to bring the suit in the next Term of the Superior Court.” This evidently had reference to a suit to be originated in the Superior Court. He must have known, or at least he must be presumed to have known, that he could not bring a civil action in the Superior Court for a claim of such an amount. The only suit, then, he could have brought in the Superior Court, was a criminal action, and we think it is deducible, by a necessary implication from the whole tenor of the letter, that that was the action with which the prosecutor was threatened, and the action intended must have been a criminal action for embezzlement, under §1014 of The Code; for that is the only statute we have, making it indictable for an agent fraudulently to convert to his own use, any money, &c., and is made punishable as larceny, which is a penitentiary offence.
Besides this, the Courts do not favor motions to quash. “It is not usually exercised, unless when the defect is gross and apparent, nor when the offence is of a heinous nature.” State v. Baldwin, 1 D. & B., 195.
Our conclusion is, there was error, and the judgment of the Superior Court is reversed. Let this be certified to the Superior Court of Durham, that further proceedings may be had according to law.
Error. Reversed.