State v. Nahoum

• Decision Date: 02 February 1931
• Docket Number: 30806
• Citation: 133 So. 370,172 La. 83
• Court: Louisiana Supreme Court
• Parties: STATE v. NAHOUM

133 So. 370

172 La. 83

STATE v. NAHOUM

No. 30806

Supreme Court of Louisiana

February 2, 1931

[Copyrighted Material Omitted]

Rehearing Denied March 2, 1931

Appeal from Criminal District Court, Parish of Orleans; Frank T Echezabal, Judge.

Jules Nahoum was convicted of embezzlement, and he appeals.

Affirmed.

Daly & Hamlin, of New Orleans, for appellant.

Percy Saint, Atty. Gen., E. R. Schowalter, Asst. Atty. Gen., and Eugene Stanley, Dist. Atty., J. Bernard Cocke, Asst. Dist. Atty., and St. Clair Adams, all of New Orleans, for the State.

ROGERS J. O'NIELL, C. J., dissents. ODOM, J., takes no part.

OPINION

ROGERS, J.

Jules Nahoum was charged jointly with Leon Brugger and F. R. Bedrich with embezzling $ 60,000 from the West Coast Trading Company, S. A., a Mexican corporation, of which Nahoum was the president and general manager. The information contained two counts, the first charging the embezzlement of $ 60,000 in money, and the second charging the embezzlement of three checks of $ 20,000 each. Brugger and Bedrich were not tried on the information, but Nahoum was. After a trial lasting eight days, the proceedings of which are embodied in a transcript consisting of two large volumes, containing 531 pages, Nahoum was convicted on both counts, and sentenced on the second count to imprisonment in the penitentiary for a term of not less than six nor more than nine years. This appeal is prosecuted by Nahoum from his conviction and sentence.

The record contains an application for a bill of particulars, a motion to quash, an exception to the jurisdiction of the court, motions for a new trial and in arrest of judgment, and twelve bills of exception.

Bills Nos. 1 and 2 relate to the same subject-matter, and we will dispose of them together. Bill No. 1 was reserved to the partial overruling of appellant's application for a bill of particulars and bill No. 2 was reserved to the overruling of appellant's motion to quash the bill of information.

Appellant is charged and prosecuted under the provisions of Act No. 165 of 1918. The application for a bill of particulars and the motion to quash are predicated on the failure of the state to set out in the bill of information that Leon Brugger and F. R. Bedrich, appellant's codefendants, were agents, employees, or servants, or that they acted for or on behalf of, the West Coast Trading Company, S. A., or bore any of the relations to said company referred to in the statute.

Act No. 165 of 1918, so far as it is pertinent to the discussion reads as follows, viz.:

"Any servant, clerk, broker, agent, consignee, trustee, attorney, mandatory, depositary, common carrier, bailee, curator, testamentary executor, administrator, tutor, or any person holding any office or trust under the executive or judicial authority of this state, or in the service of any public or private corporation or company, who shall wrongfully use, dispose of, conceal or otherwise embezzle any money, bill, note, check, order, draft, bond, receipt, bill of lading, or any other property which he shall have received for another, or for his employer, principal or bailor, or by virtue of his office, trust or employment, or which shall have been entrusted to his care, keeping or possession by another, or by his employer, principal or bailor, or by any court, corporation or company, upon conviction thereof, or of having aided or abetted in the commission thereof, or of having been accessory thereto, before or after the fact, shall suffer imprisonment," etc.

The bill of information, after setting forth the fiduciary relationship existing between the appellant Nahoum and his principal, West Coast Trading Company, S. A., alleges:

"* * * And as such, an agent and employee of the said corporation, and he, the said Leon Brugger, and he, the said F. R. Bedrich, and he, the said Jules Nahoum, each then and there, aiding, abetting and assisting each other, did by virtue of the agency existing between he (sic) the said Jules Nahoum and the said West Coast Trading Company, S. A., and while he, the said Jules Nahoum, was acting in his capacity as aforesaid, each did receive and take into his possession and have entrusted to his care and keeping, for and in the name of, and for the account of the said West Coast Trading Company, S. A., a corporation, as aforesaid" ($ 60,000 in money in the first count and $ 60,000 in checks in the second count) "which said" (money or checks as set forth in the different counts) "so to them entrusted, the said Jules Nahoum, the said Leon Brugger and the said F. R. Bedrich, each, did then and there feloniously and wrongfully use, dispose of, conceal and otherwise embezzle," etc.

In support of his bill, appellant relies on the well-settled rule that criminal statutes cannot be extended to cases not included within the clear and obvious import of their language. And his contention is that Leon Brugger and F. R. Bedrich cannot be charged with embezzlement, since they were not employed by the West Coast Trading Company, S. A., nor bore any of the relations to that company as set forth in the statute.

The bill of information clearly alleges that Nahoum, Brugger, and Bedrich aided and abetted each other in the embezzlement of the money or checks of Nahoum's principal, the West Coast Trading Company, S. A.

The information appears to be drawn in the language of the statute.

Act No. 165 of 1918 denounces as a crime the act of a fiduciary in aiding and abetting others in the embezzlement of his principal's property. The statute does not declare that those who aid the fiduciary in the alleged embezzlement cannot be charged either under the terms of the statute, or under some other law, in the same information with the fiduciary, unless the aiders and abettors bear the relations to the principal referred to in the legislative act.

The Revised Statutes, § 972, provides:

"Whoever shall be convicted as accessory before the fact to any crime or offense, shall suffer the same kind and extent of punishment, according to the circumstances of the case, as might lawfully be inflicted upon the principal offender for such crime or offense."

And the Code of Criminal Procedure, art. 238, declares:

"Except in those cases in which the aiding and abetting in or the procuring of the commission of a designated crime is made a distinct offense, it shall be unnecessary in any indictment to allege that defendant did aid and assist in or procure the commission of the crime charged, but the aider and abettor and the accessory before the fact may each be indicted as a principal, that is to say, charged directly with the commission of the crime."

We find in 20 C. J. p. 457, the following statement of the rule governing the crime of embezzlement, viz.:

"Embezzlement is not inherently a joint but a joint and several offense; it may be committed by one person or by a number of persons."

"One who aids or abets another in the fraudulent conversion of money or other property is guilty of embezzlement, if not as principal, then as an accessory before or after the fact."

Also at page 427 of the same authority appears this language, viz.:

"The means by which the fraudulent conversion is accomplished are immaterial. It may be effected by any exercise of the right of ownership inconsistent with the owner's rights, and with the nature and purposes of the trust. To constitute a conversion of money or property so as to make out a case of embezzlement, accused need not appropriate the property to his own use, but is guilty if he fraudulently appropriates it to the use of another."

Any person who is capable of committing a crime may be guilty as a principal in the second degree or accessory before the fact; and it can make no difference that, by reason of age, sex, condition, or class, he or she is incompetent to commit the particular crime as principal in the first degree. Cyclopedia of Criminal Law, vol. 1, § 224, p. 411.

There are many offenses which can only be committed by particular classes of the community: Bigamy by married persons; rape, seduction, and bastardy by males; larceny after trust by bailees; embezzlement by officers. But because one cannot be a principal it by no means follows that he cannot be punished as an aider and abettor. R. C. L. vol. 1, § 7, p. 135.

Upon the enactment of a statute defining a new felony, it becomes incorporated in the body of the criminal law, and draws to itself all the general rules applicable to indictment, evidence, and procedure incident to other crimes of the same grade. And without being mentioned in the statute, the rules governing accessories immediately attach. Rev. Stat. § 972; Code Cr. Proc. art. 238.

Thus a woman may be punished for aiding one attempting rape; a husband, although he cannot individually commit rape upon his wife, may be liable as principal for aiding and abetting another in the commission of the crime. R. C. L. vol. 1, § 7, p. 135. And a person not connected with a corporation as an officer or otherwise may be an accessory to the embezzlement of its funds by one of its officers. R. C. L. vol. 1, § 23, p. 145.

While an officer or employee of a corporation can only himself embezzle the corporation's funds in his hands, yet another person, who cannot himself embezzle the funds, can and will be guilty as a principal if he acts with the officer or employee and aids or abets him in committing the offense. See Quillin v. State, 79 Tex. Cr. R. 497, 187 S.W. 199, 5 A. L. R. 773; State v. Rowe, 104 Iowa 323, 73 N.W. 833; People v. McKane, 143 N.Y. 455, 38 N.E. 950; U.S. v. Snyder (C. C.) 14 F. 554, 4 McCrary, 618; U.S. v. Bayer, 4 Dill, 407, 24 F. Cas. 1046.

It cannot be successfully argued, therefore, that a person cannot be charged...