State v. Stevenson

Haskell, J.

Indictment under the act of 1893, c. 241, for larceny by embezzling the goods of another. The indictment in substance charges -that the defendant “ did receive and take into his possession certain money ” etc., delivered to him by one Stewart which the defendant “ unlawfully and feloniously did embezzle and fraudulently convert to his own use, the same being the subject of larceny, and so did feloniously steal, take and carry away the same, contra pacem, etc.

The defendant was found guilty, and moves arrest of judgment because the indictment does not charge the receipt of the money, etc., in any fiduciary relation, or upon any trust and confidence.

The Attorney for the State contends that such averments are unnecessary under the statute that inhibits, as larceny, the embezzlement of money, goods or property, which may be the subject of larceny, delivered to the defendant.

The act is as follows:

“Whoever embezzles, or fraudulently converts to his own use, or secretes with intent to embezzle or fraudulently convert to his own use, money, goods or property delivered to him, or any part thereof, which may be the 'subject of larceny, shall be deemed guilty of larceny.”

The purpose of the statute is to create a peculiar species of larceny, where the felonious taking is wanting; and all authorities *112 agree tbat in such case an indictment for larceny proper cannot be maintained. That is, proof of embezzlement will not support an indictment for larceny. It logically follows, therefore, that an indictment for larceny by embezzlement must distinguish the offense by apt averment, and the distinguishing element is the breach of some trust or confidence. That is the gist of the crime, and therefore must be charged. No authority can be found to the contrary. State v. Walton, 62 Maine, 106, is cited at the bar, but that case squarely holds to this doctrine. That was an indictment against a public officer. The court says: “ The questions are: Was he a public officer? Has he fraudulently converted to his own use money, which he had in his possession and under his control, by virtue of his office ? It is set forth in the indictment that the defendant, being a public officer, .... did.by virtue, of his office and while employed therein receive and have in his possession certain money, etc., and the said money did then and there unlawfully and fraudulently embezzle and convert to his own use, and so did steal, take and carry away the same.” State v. Lynch, 88 Maine, 195, is cited to the point that offenses must be charged in the words of the statute or in language equivalent thereto. Certainly, offenses must always be so charged, but sometimes such averments are not sufficient. One example is where air offense is prohibited, but not defined. There the indictment should charge the elements of the offense as well as the statute inhibition. For instance, a statute might prohibit murder, arson, robbery, or larceny, and would any one contend that an indictment charging those offenses in the words of the statute a sufficient compliance with our constitutional provision that the accused “ may demand the nature and cause of the accusation and have a copy thereof? The indictment in this case charges the embezzlement of money delivered to the defendant. Suppose it were paid to him by.mis' take, and he converted it, should he be held as for larceny ? Nothing more is necessarily charged. The very word embezzle implies the moral turpitude of a breach of trust equal to felonious taking. This is not a new question. If it were, customary laxity might say an indictment charging that a defendant did embezzle money *113 the property of another, and so did steal, take and carry away the same, would be sufficient. In substance, that is all there is of the indictment in this case.

The statute in question was copied verbatim from Massachusetts Pub. Stat. c. 203, § 37. It was first enacted there in 1857, c. 233, and has been in force ever since. It has many times been construed by the Massachusetts court, and it is fair to presume that its construction was intended by our legislature when it was enacted here. To supply the defect of a prior Massachusetts statute, that did not reach the fraudulent conversion of a mere naked deposit of money for safe keeping, the present statute was enacted. Commonwealth v. Hays, 14 Gray, 62 . In that case it is said that these prior statutes were intended to reach the fraudulent taking of money by persons to whom it had been intrusted by their employers and others on trust and confidence where no conviction for larceny could be had for want of taking or asportation, an essential element in that crime, and that to such persons only the statutes apply. Commonwealth v. Stearns, 2 Met. 343 ; Commonwealth v. Libbey, 11 Met. 64 ; Commonwealth v. Williams, 3 Gray, 461 . In the same case it is further said that the present statute was “ intended to embrace cases where property had been designedly delivered to a person as bailee or keeper and had been fraudulently converted by him.....That beyond this the statute was not intended to go,” and so it was held that where money was paid by mistake and fraudulently converted, no conviction could be had under the statute, inasmuch as the moral turpitude was not so great as in those cases usually comprehended within the offense of embezzlement, and that the legislature could not have intended to place them on the same footing.

In Commonwealth v. Hussey, 111 Mass. 432 , it is held that “the fiduciary relation essential to characterize the crime is sufficiently expressed by the averment that the property was delivered to the defendant upon the trust and confidence that he would return it to the owner on demand.” That was an indictment under the statute in question. Notice the expression, “the fiduciary relation essential to characterize the crime,”

*114 In Commonwealth v. Smart, 6 Gray, 16 , an indictment under this same statute, the court say: “The general allegation that the defendant was ‘entrusted’ with certain enumerated articles, the property of Scott, is too loose and indefinite; since such an averment is equally applicable to a common carrier, and to any other person to whom chattels have been delivered, either to be carried for him, or to be kept, or used, or appropriated to any particular object or service in the manner which may have been prescribed and directed by the owner, or specially agreed upon by the parties. In neither of these particular’s is there any discrimination or certainty in the averments’contained in the indictment.”

In Commonwealth v. Concannon, 5 Allen, 506 , an indictment under the same statute for embezzling a mortgage, it is said: “ There is a distinct averment that the deed was delivered to the defendant, and that he took and received it for the purpose of carrying and delivering it to the prosecutor. We cannot see that this does not fully and formally set out the agreement or trust on which the deed was received by the defendant.” It was held sufficient.

In Commonwealth v. Simpson, 9 Met. 138 , an indictment under the prior statute for embezzling goods, it was held that a conviction could not be had under an indictment good only as an indictment for larceny. The court say : “ The general object of the various statutes in relation to embezzlement, in England and in this Commonwealth, doubtless was, to embrace,' as criminal offenses punishable by law, certain cases where, although the moral guilt was quite as great as in larceny, yet the technical objection, arising from the fact of a possession lawfully acquired by the party, screened him from punishment. They were therefore declared crimes punishable by law.

“ The purposes of this statute may, as it seems to us, be sufficiently attained, without any infringement of those rules of criminal pleading which require the charge to be particularly and certainly set forth. The defendant should, as far as is reasonably practicable, be apprised, by the indictment, of the precise nature of the charge made against him. This, in embezzlement, so far as *115 respects the nature of the offense or character of the crime charged, may be easily indicated by setting forth' the fiduciary relation, or the capacity in which the defendant acted, and by means of which the property came into his possession, and by charging the fraudulent conversion. Such seems to have been the practice under the English Sts. 21 Hen. 8 , c. 7, 39 Geo. 3, c. 85, and 52 Geo. 3, c. 63. See the forms of indictment, in 3 Chit. Crim. Law, (4th Amer. ed.) 961 & seep Archb. Crim. Pl. (1st ed.) 156.

“ The court are of opinion that the two offenses of larceny and embezzlement are so far distinct in their character, that under an indictment charging merely a larceny, evidence of embezzlement is not sufficient to authorize a conviction; and that, in cases of embezzlement, the proper mode is, notwithstanding the statute to which we have referred, to allege sufficient matter in the indictment to apprise the defendant that the charge is for embezzlement. Although the party, in the language of the statute, ‘shall be deemed to have committed the crime of simple larceny,’ yet it is larceny of a peculiar character, and must be set forth in its distinctive character.”

That case was referred to and adopted in Commonwealth v. Pratt, 132 Mass. 246 . It is there held that no judgment for embezzlement can be given unless the indictment directly charge larceny by the phrase “feloniously did steal, take and carry away ” as well as set out the nature of the embezzlement that is made larceny by statute. In Commonwealth v. Mead, 160 Mass. 319, 1894 , an indictment under the' act in question charges the fiduciary relation. So does Commonwealth v. Parker, 165 Mass. 526, 1896 . All of these decisions were made notwithstanding an existing Massachusetts statute, Pub. Stat. 1882, c. 203, § 44, providing that in such cases “ it shall be sufficient to allege generally in the indictment an embezzlement, fraudulent conversion or taking with such intent of money to a certain amount without specifying any particulars of such embezzlement.” But they hold that the breach of trust and confidence which is essential to charge embezzle-^ meat must be averred as well as proved.

*116 Three things must be averred:—

I. Fiduciary relation.

II. Fraudulent conversion.

III. Larceny in apt phrase.

Unless all of these be proved, no conviction can be had, and it is common learning that all elements of a crime necessary to be proved must be averred.

Under our statute, construed in the light of the Massachusetts cases, from whence we adopted it, there is no escape from holding the indictment in this case insufficient, and the result is supported by reason as well.

Judgment arrested.