Compton v. State

• Citation: 143 S.W. 897
• Parties: COMPTON v. STATE.
• Decision Date: 27 November 1911
• Court: Supreme Court of Arkansas

143 S.W. 897

COMPTON v. STATE.

Supreme Court of Arkansas.

November 27, 1911.

Dissenting Opinion, January 15, 1912.

On Rehearing, January 22, 1912.

Appeal from Circuit Court, Lee County; Hance N. Hutton, Judge.

W. A. Compton was convicted of embezzlement, and he appeals. Affirmed.

Jos. W. House, Geo. W. Murphy, C. E. Daggett, R. D. Smith, and H. F. Roleson, for appellant. Hal L. Norwood, Atty. Gen., and Wm. H. Rector, Asst. Atty. Gen., for the State.

HART, J.

The defendant, W. A. Compton, has appealed from the judgment of conviction for the crime of embezzlement. The indictment, caption and formal parts omitted, is as follows:

"The said W. A. Compton, in the county and state aforesaid, on the 4th day of October, 1907, then and there being a duly elected, qualified and acting member of the board of directors of special school district No. 1 of Marianna, which said school district is a corporation organized under the laws of the state of Arkansas, and the said W. A. Compton then and there being the duly elected and acting secretary of the board of directors, and then and there as such secretary having authority under the law to draw warrants on the county treasurer of Lee for money payable out of the funds of said school district, did draw a warrant on the county treasurer of Lee county payable to himself, out of the funds of said school district, which said warrant drawn and signed by the said W. A. Compton as said secretary, and also signed by the president of the board of directors of said school district, is in words and figures as follows: `District School Fund, District No. ____ No. ____. 10-4-1907. Treasurer of Lee County, Arkansas: Pay to W. A. Compton, Secy., or order the sum of one hundred and fifty * * * 100 dollars out of the special school district fund, Marianna. For fee to S. H. Mann in school cases. H. B. Derrick, Jr., Pres. W. A. Compton, Secy. Directors.' And then and there, he, the said W. A. Compton, having said warrant in his possession, by reason of his said office as secretary of said board of directors, the said warrant being payable to him, the said W. A. Compton, secretary, or order, did indorse the same in blank as secretary, on the back thereof, and then and there did present and deliver the same to the Bank of Marianna, and then and there the said Bank of Marianna did present said warrant, drawn as aforesaid, to the treasurer of Lee county, and then and there did receive from the said treasurer of said Lee county $150 out of the funds belonging to the special school district No. 1 of Marianna, and then and there he, the said W. A. Compton, by virtue of his said office, did receive from the Bank of Marianna the sum of $100 of said sum of $150 received from the Bank of Marianna, of the treasurer of Lee county, Ark., of gold, silver and paper money, the property of the said school district, of the value of $100, and then and there unlawfully and feloniously did embezzle and convert the same to his own use, and so, the said W. A. Compton, the sum of $100, of gold, silver and paper money, of the value of $100, the property of special school district No. 1 of Marianna, unlawfully and feloniously did steal, take and carry away, against the peace and dignity of the state of Arkansas."

No demurrer to the indictment was filed, but the defendant filed a motion in arrest of judgment. The statute provides that the only ground upon which a judgment shall be arrested is that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court. Kirby's Dig. § 2427; Ince v. State, 77 Ark. 426, 93 S. W. 65. Counsel for defendant rely for a reversal of the judgment chiefly upon the ground that there is no statute under which the indictment in this case could be drafted. They claim that no offense is charged under any of the sections of our statute relating to embezzlement.

Section 1837 of Kirby's Digest reads as follows: "If any clerk, apprentice or servant, employé, agent or attorney of any private person, or of any copartnership, except clerks, apprentices, servants and employés within the age of sixteen years, or any officer, clerk, servant, employé, agent or attorney of any incorporated company, or any person employed in any such capacity, shall embezzle or convert to his own use, or shall take, make way with, or secrete with intent to embezzle or convert to his own use, without the consent of his master or employer any money, goods or rights in action, or any valuable security or effects whatsoever belonging to any other person, which shall have come to his possession, or under his care or custody, by virtue of such employment, office, agency or attorneyship, he shall be deemed guilty of larceny and on conviction shall be punished as in cases of larceny."

It is contended that the allegations of the indictment do not bring the defendant within the category of persons who may be guilty of embezzlement under this section of our statutes. Embezzlement is purely a statutory offense. While our statute concludes by providing that the person so committing an act of embezzlement shall be deemed guilty of larceny, yet embezzlement is regarded as a separate and distinct crime, and is so treated in our decisions. It is evident that the allegations of the indictment do not bring the defendant within the class of persons in the statute designated as clerks, apprentices, or servants of any private person or copartnership, or officers, agents, clerks or servants of any incorporated company. The particular inquiry then is, What is the meaning of the clause "or any person employed in any such capacity"? It is a fundamental rule of construction "that every statute, where it is practicable, must be so construed that every part and provision contained in it may have some operation." Dunn v. State, 2 Ark. at page 250, 35 Am. Dec. 54. In like manner, the section in question is to be construed as a whole, and the meaning to be attached to any particular word or clause is to be ascertained from the context. In other words, "a statute must receive such reasonable construction as will, if possible, make all its parts harmonize with each other, and render them consistent with its scope and object." Lewis' Sutherland, Stat. Con. (2d Ed.) vol. 2, § 368. This rule of interpretation was recognized and applied by the court in the case of Matthews v. Kimball, 70 Ark. at page 458, 66 S. W. 651, 69 S. W. 547. In the discussion of the application of the rule the court quoted approvingly from Black on Interpretation of Laws, p. 143, as follows: "The general object of an act sometimes requires that the final general term shall not be restricted in meaning by its more specific predecessors." Continuing, the court quoted the following from Sutherland, Stat. Const. p. 360: "The enumeration of particular things is sometimes so complete and exhaustive as to leave nothing which can be called ejusdem generis. If the particular words exhaust a whole genus, the general words must refer to some larger genus." So, too, in the case of Wallis v. State, 54 Ark. 611, 16 S. W. 821, in discussing the rule of ejusdem generis, the court said: "Where an act attempted to enumerate the several species of a generic class, and follows the enumeration by a general term more comprehensive than the class, the act will be restrained in its operation because it is discerned that the Legislature so intended, but where the detailed enumeration embraces all the things capable of being classed as of their kind, and general words are added, they must be applied to things of a different kind from those enumerated. For the rule does not require the entire rejection of general words, and is to be used in harmony with the elemental canon of construction that no word is to be treated as unmeaning if a construction can be found that will preserve it and make it effectual." This was an embezzlement case and the court held (quoting from syllabus): "The statute defining the crime of embezzlement by `any carrier or other bailee' is not confined to bailees of the generic class `carriers,' but embraces all bailees."

In the application of the rule to the present case, we think that the words "in any such capacity" refer to the relation or position of the person employed, and not to the class of persons who employed him. Any other construction would render the clause meaningless; for the statute, by an enumeration in detail, has already exhausted the classes of persons who might be guilty of embezzlement of the property of a private person, copartnership, or private corporation. The general words "or any person employed in any such capacity" must be given a meaning outside of the classes indicated by the particular words, or we must say that they are without meaning as used in the section in question, and thereby sacrifice the general to preserve the particular words. Therefore, we are of the opinion that the words "any person employed in any such capacity" mean any person employed in the capacity of officer, agent, servant, etc. When so construed, section 1837 does not limit the persons who may be guilty of embezzlement to those employed by private persons, private corporations or partnerships, but includes, as well, any person employed in the capacity of agent or servant, etc.

The indictment in question alleges that the defendant was secretary of the school board, and that as such he had authority to draw warrants on the treasurer of the county, payable out of the funds of the school district; that he did draw a warrant on the county treasurer payable to himself; and that the same was also signed by the president of the board. The warrant is set out in the indictment, and shows that it was drawn to pay S. H. Mann for legal services due him by the school board. This is sufficient to show the trust relation of the defendant to the school board, and that he was acting in the matter for the board. Hence the allegations of the...