DIDER ROOSE, Appellant, v. REPUBLIC of LIBERIA
JUDICIAL CIRCUIT, CRIMINAL ASSIZES, MONTSERRADO COUNTY, LIBERIA, Appellee.

APPEAL FROM THE CIRCUIT COURT FOR THE FIRST TY

Heard: December 6, 1979. Decided: December 20,1979.

1. It is a settled principle of law that a charge must be proven as laid in the indictment.
2. An indictment for embezzlement must state the value of the property alleged to have been embezzled, particularly where the amount or value of the property is of the essence of the offense.
3. An article which has no value is not the kind of property subject to embezzlement.
4. To make out a case for embezzlement, it is generally necessary to show that the property was within the protection of the statute; that it belonged to someone other than the accused; that the accused acquired it lawfully and occupied a fiduciary relationship; and that the property was converted with a fraudulent intent.
5. Where the indictment for embezzlement sets forth that the property was delivered to the accused in trust or for a particular purpose, it is not sufficient to merely allege that he embezzled or converted it, but it should be proved that the acts of the accused were inconsistent with the trust confided in him.
6. An essential element of embezzlement is that the accused has received and taken into his custody money or other articles of value. One cannot convert to his own use profit unrealized and not received; hence, embezzlement will not obtain for expected profit.

Appellant was found guilty of embezzlement of the amount of $20,000, which is claimed to be the profit that would have accrued to the private prosecutor arising out of a blueprint for a steel compass that was given to appellant by a customer of the private prosecutor, appellant’s employer. While evidence was introduced that the blueprint was delivered to appellant and taken away by the business collaborator of the private prosecutor, there was no evidence that appellant or the said business collabo-rator actually used the blueprints and supplied the compass steel to the private prosecutor’s customer. The blueprint steel was estab-lished by evidence to be virtually valueless and available to the public. The amount of $20,000 for which the crime of embezzlement was charged was never realized by the private prosecutor and was never ever in the custody of appellant; it was merely a speculated profit.
On appeal the Supreme Court reversed the judgment on several grounds, the principle one of which was that profits unrealized and hence not received cannot be the subject of embezzlement by a fiduciary.

Stephen B. Dunbar, Sr. and Stephen B. Dunbar, Jr., appeared for appellant. Solicitor General E. Winfred Smallwood and Counsellor Toye C. Bernard appeared for appellee.

MR. JUSTICE HENRIES delivered the opinion of the Court.

Appellant was employed by Mezbau, Inc. to promote the sale of Mezbau’s aluminum products, steel compass plates and rods. Appellant was introduced to Mezbau by Mr. Coelen, general manager of Matam, a Belgian company, which gave Mezbau exclusive right to sell Matam compass steel in Liberia. Appellant is also a shareholder of Matam.
On one of his visits to Liberia, Mr. Coelen, together with the appellant, visited Mines Management Associates, a mining company, and a blueprint for compass steel for use in rail cars was given to them to deliver to Mezbau so that an order for the steel could be placed by Mezbau. It was part of appellant’s duties to visit the mining companies and obtain orders on behalf of Mezbau. Because he had done so on several occasions, he was known as a representative of Mezbau. In any event, upon their return from Mines Management, they had a meeting with the general manager of Mezbau, and on the same day Mr. Coelen left for Belgium, taking the blueprint with him.

There is disagreement on whether or not the general manager of Mezbau knew of, or consented to, the taking of the blue print to Belgium for quotations. Notwithstanding, appellant made note of the thickness and quantity of the compass steel required by the mining company, and estimated the cost as being between $120,000.00 and $150,000.00. This note he placed in his office. Mezbau contended that they learned of the blueprint later, and after a long search they discovered appellant’s note. Sub-sequently, his services were terminated. Mezbau, through the State instituted criminal proceedings against him in Criminal Court “B” of the First Judicial Circuit, Montserrado County. He was indicted on the charge of embezzlement of the blueprint, and that as a result of the conversion of the blueprint to his own use, Mezbau lost $20,000.00 in profits which it would have received had the appellant delivered the blueprint to Mezbau so that it could order the compass steels. The jury brought in a verdict of guilty, and final judgment was rendered in accordance with the verdict, sentencing appellant to one-year imprisonment, fining him $300.00, and ordering restitution of $20,000.00. The appellant excepted to and appealed from this judgment.
The gravamen of the crime of embezzlement is: (a) sum certain of money or value of the articles alleged to have been converted by the defendant, and (b) fraud established beyond all reasonable doubt. Sancea v. Republic, [1932] LRSC 10; 3 LLR 347 (1932). It is a settled principle of law that a charge must be proven as laid in the indictment, and embezzlement is no exception. 29 C. J. S., Embezzlement, § 37. It is our considered opinion that the charge of embezzlement has not been proven.
It is agreed that while in the employ of Mezbau, appellant did receive a blueprint for, but which was not delivered to, Mezbau. Instead the blueprint was taken to Belgium. The indictment alleged that it was converted to his own use, but there is no evidence as to how the conversion was done. It would seem that where the indictment sets forth that the property was delivered to an accused in trust, or for a particular purpose, it is not sufficient to allege merely that he did embezzle, or that he did convert, but the acts of the accused that were inconsistent with the trust confided in him should be proven. There is no evidence of any fraudulent use being made of the blueprint by the appellant.

The indictment alleged that the blueprint was an article of value which would have brought a profit of $20,000.00 but it did not state the value of the blueprint. The evidence adduced at the trial showed that the blueprint was hardly of any value. Signifi-cantly, Mines Management which made the blueprint did not attach any value to the document. Indeed its controller of train transport, Mike Hurley, who gave the blueprint to the appellant and Mr. Coelen, and who was appellant’s witness, testified on the cross-examination thus: Ques. “Mr. Witness, are you telling this honourable court that the blueprint which you identified costs nothing to Mines Management Associates to have it made? Ans. “The cost of the paper; the blueprint is just the cost of the paper and no other value and we give it away free to all agencies.” See sheet 2, 33rd day’s session of the court’s minutes. Earlier the appellant himself, in answer to a jury question, testified: “the cost of the blueprint is the cost of the paper.” See court’s minutes, sheet 3, 32nd day’s session. This testimony was never rebutted. As a general rule, an indictment for embezzlement must state the value of the property alleged to have been embezzled, particularly where the amount or value of the property is the essence of the offense. 29 C.J.S., Embezzlement, § 30. An article which has no value is not the kind of property subject to embezzlement. 26 AM. JUR. 2d., Embezzlement, §12.
It would appear from the indictment that the appellee is valuing the blueprint as being the estimated profit of $20,000.00 that would have accrued to Mezbau. This brings us to the crux of the matter: whether appellant embezzled profits which would have accrued to Mezbau if it had received the blue print and used it to place the order for compass steel? We hold that one cannot convert to his own use profits unrealized and hence unreceived. Throughout the trial no evidence was adduced to show that appellant was given $20,000.00 for Mezbau by Mines Manage-ment or by Matam. One of the essential elements of embezzle-ment is that the accused must have received and taken into his custody money or an article of value. Penal Law, 1956 Code 27:299 (a).

More than this, no evidence was introduced to show that appellant did use the blueprint to order compass steel for Mines Management or any other company. In fact, Mr. Hopewood, assistant general manager of the mining company testified as follows: “I instructed car yard supervisor, Mr. Mike Murley, to allow them (appellant and Coelen) to inspect the cars of the car yards and to give them all information and drawings necessary for sample liner doors to be made. Subsequently to the best of my knowledge doors made from compass steel were supplied by Mezbau.” See Court’s minutes, sheet 7, 32nd day’s session. He also testified that to his knowledge, “Matam has not supplied or made offer to Mines Management”; and “we have received no offer from Mr. Roose of Mezbau or Matam in recent times in his own capacity since he left Mezbau.” See sheet 12, 32nd day’s session.
Again Mr. Hopewood testified thus: “The sample doors which I believe to be made from compass steel were finally supplied by Mezbau. The first lot of sample doors made from compass steel were supplied by Mezbau. These doors were fitted to all cars which were subsequently lost by the derailment in the swamp. Subsequently Mezbau supplied another lot of sample doors and made to T-1 steel, and these doors were recently fitted to another car so that we may continue to make the test.” Again, no effort was made to rebut this testimony.

The material facts essential to constitute the crime of embezzlement must be proved beyond a reasonable doubt Attoh v. Republic, [1945] LRSC 1; 9 LLR 3 (1945). According to 29 C.J.S., Embezzle-ment, § 5, “to make out a case of embezzlement it is generally necessary to show that the property was within the protection of the statute; that it belonged to someone other than the accused; that the accused acquired it lawfully and occupied a fiduciary relationship; and that the property was converted with a fraudulent intent.” We must reiterate that a case of embezzlement has not been made out because unrealized and unreceived profits and articles without value such as the blue print herein do not fall within the protection of the embezzlement statute; while there was some evidence that the blue print was delivered in trust to the appellant, there was no evidence, only speculation, with respect to unaccrued profits; and even though appellant acquired the blue print lawfully, and occupied a fiduciary relationship, there is only the mere allegation, and no evidence, of a fraudulent conversion of the blue print. It is clear that the evidence adduced at the trial fell very short of proving beyond a reasonable doubt the guilt of the appellant in accordance with the charge laid in the indictment. Whatever appellant might be guilty of, it is not embezzlement.
In view of the foregoing, the judgment of the lower court is reversed, and the accused is ordered discharged without day from further answering the charge of embezzlement. And it is hereby so ordered.

Judgment reversed.