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State v. Burgess.

It will be observed that the act of making way with and secreting is charged to have been fraudulently and feloniously done, but no where is it alleged that in so doing the defendant acted with a fraudulent or felonious intent to embezzle and convert, or with the intent to fraudulently and feloniously embezzle and convert. The information is bottomed on the second subdivision of section 4552, Revised Statutes 1909, which section is as follows:

"If any carrier, bailee or other person shall embezzle or convert to his own use, or make way with or secrete, with intent to embezzle or to convert to his own use, any money, goods, rights in action, property or valuable security or other effects which shall have been delivered to him, or shall have come into his possession or under his care as such bailee, although he shall not break any trunk, package, box or other thing in which he received them, he shall, on conviction, be adjudged guilty of larceny and punished in the manner prescribed by law for stealing property of the nature or value of the articles so embezzled, taken or secreted."

As heretofore held by this court (State v. Lentz, 184 Mo. 223; State v. Larew, 191 Mo. 192) this statute creates two distinct classes of offenses: (1) The offense of actual embezzlement or conversion; and (2) the offense of making away with and secreting property with the intent to embezzle or convert. Under the first subdivision it is unnecessary, in order to charge an offense, to allege more than the actual embezzlement and conversion of the property, no specific intent being coupled with the forbidden act. Under the second subdivision it is necessary, however, to allege that the prohibited act, that is, the making way with and secreting, was done with the specific intent expressed in the statute. [Cases supra.] There can be no doubt that, in order to sufficiently charge an offense under the second subdivision, the

State v. Burgess.

intent to embezzle and convert must be alleged, and, to charge such an intent, it is necessary to use such words as will show a felonious or other fraudulent intent to deprive the owner of his property and to appropriate the same to the use of the defendant. For this purpose, however, it is immaterial whether the words "felonious" or "fraudulent" are used, provided apt synonyms and words of equivalent meaning are employed. [State v. Rader, 262 Mo. 1. c. 134, and cases cited.]

The question then becomes, whether the phrase "with intent to embezzle and convert" sufficiently charge such a criminal intent. As heretofore pointed out in State v. Pate, post, p. 431, the term "convert," when used alone, does not necessarily imply such a criminal intent, and its use without other qualifying words is insufficient to charge the fraudulent intent essential to the charge of embezzlement or fraudulent conversion. In that case it was pointed out that the term "convert" is not synonymous with "embezzle," and that in order to make it so such qualifying terms as "felonious" or "fraudulent," or others of similar import, must be used.

With the term "embezzle," however, we are of a different opinion. Section 8057, Revised Statutes 1909, directs us to give to 'words and phrases their plain or ordinary and usual sense, and with technical phrases having a peculiar and appropriate meaning in law to give meaning according to their technical import. The term "embezzle" is a technical word, having a legal signification, and is defined as follows: "The fraudulent appropriation to his own use or benefit of property or money entrusted to him by another." [Black's Law Dict., p. 418, and cases cited.] "Embezzlement is a fraudulent appropriation of another's property by a person to whom it has been entrusted or into whose hands it has lawfully come.

State v. Burgess.

It differs from larceny in that the original taking of the property was lawful or with the consent of the owner, while in larceny the felonious intent must have existed at the time of the taking." [15 Cyc. 488, and cases cited.] "Embezzlement is an intentional and fraudulent appropriation of the goods of another by a person intrusted with the property of the same." [2 Wharton's Crim. Law (11 Ed.), p. 1467, and cases cited.] See also numerous cases cited in Vol. 3, pp. 2350 to 2358; and Vol. 2 (2nd Series), pp. 244 to 253, Words and Phrases, wherein the term is uniformly defined as importing an appropriation or conversion with a fraudulent and criminal intent. The subject is not a new one to this court, because in the case of Hanna v. Ins. Co., 241 Mo. 1. c. 401, this court said: "Embezzlement is the fraudulent and felonious appropriation of another's property by a person to whom it has been entrusted or into whose hands it has lawfully come.' [State v. Casey, 207 Mo. 1. c. 11.]"

At common law the crime of embezzlement did not exist, it being regarded merely as a breach of trust or duty. The same is wholly statutory, and a sort of a statutory larceny committed by persons who' have lawfully secured possession of the property, and who afterwards criminally appropriate the same to their own use.

The act not being a crime at common law, and having no criminal signification thereunder, we are not hampered in giving it its proper technical meaning as we are with terms and offenses of common law meaning, as, for instance, the case of larceny, with which this court was dealing in State v. Rader, 262 Mo. 117. This distinction has heretofore been pointed out by this court in State v. Baker, 264 Mo. 339, wherein the court said (1. c. 354):

"While instruction one mentioned above does not contain the words 'feloniously,' nor does it by any circumlocution define this term, yet neither does the

State v. Burgess.

statute which makes the stealing of domestic fowls a felony, use the word 'feloniously.' This case therefore is clearly distinguishable from the case of State v. Rader, 262 Mo. 117, wherein out of deference to the definition of the ordinary crime of grand larceny as the Legislature had ordained it, the writer said that an instruction under the provisions of section 4535 ought either to contain the word 'feloniously' or define it with reference to the intent of the taking."

To the instant subject we can appropriately apply the words of WALKER, J., in his separate opinion in State v. Rader, supra: "The use of the omitted words of which complaint is made, is not only redundant, but tautological." They would add nothing whatever to the clearness or force of the charge, but, to the contrary would seem, when analyzed, rather to confuse. It would be the equivalent of charging that the defendant converted with a feloniously felonious, or fraudulently fraudulent, intent. We are not disposed to give countenance to such a doctrine, and, in our opinion, the allegation that he did the prohibited act with the intent to embezzle was a sufficient charge of a felonious or otherwise fraudulent intent.

We are not unmindful that this court in State v. Schilb, 159 Mo. 130, reversed a judgment because the court failed in its instruction to specifically require the jury to find that the conversion was accompanied by a felonious or fraudulent intent, and notwithstanding that the instruction used the words "embezzle" and "convert." In that case, however, the phrase which is decisive with us was not considered or discussed, the court merely holding, upon the strength of the case of State v. Cunningham, 154 Mo. 161, that such an intent must be found by the jury before a conviction could be had.

In the case of State v. Cunningham, supra, the instruction did not use the term "embezzle," but

State v. Burgess.

merely the word "convert," and in our opinion it was correctly decided.

In State v. Obuchon, 159 Mo. 256, the court likewise criticised an instruction which omitted specific reference to a felonious or fraudulent intent. Our views are that in this case the instruction used terms which clearly required a finding of fraudulent intent, and that the same did not merit the criticism directed against it. To the extent that these two cases are in conflict with our present holding they should be and are overruled.

Conviction

of Crime

II. The judgment in this case, however, must be reversed and the cause remanded for other reasons. The record presents a most peculiar and remarkable condition. Defendant was charged with the doing of certain acts with intent to embezzle, and was tried for actual embezzlement, and by the jury found guilty of larceny, there being no submission of the offense charged, and no finding thereon by the jury.

not Charged.

For reasons which we cannot understand, the court did not instruct upon the offense charged, but instructed on another, towit, actual conversion and embezzlement, and told the jury that if they found that the defendant had actually embezzled and converted the property they should find him guilty of larceny. The offense charged in the information, and the one submitted to the jury, are entirely separate and distinct, as heretofore pointed out. The information does not charge that he embezzled and converted the property, but merely that he did other things with the intent to so embezzle and convert. The Bill of Rights entitles a person to be informed of the nature and cause of the accusation against him, and he cannot be brought into court to answer one charge,

268 Mo.-27

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