Moore v. United States

• Citation: 40 L.Ed. 422,16 S.Ct. 294,160 U.S. 268
• Decision Date: 23 December 1895
• Docket Number: No. 719,719
• Parties: MOORE v. UNITED STATES
• Court: U.S. Supreme Court

160 U.S. 268

16 S.Ct. 294

40 L.Ed. 422

MOORE

v UNITED STATES.

No. 719.

December 23, 1895.

Plaintiff in error, late assistant postmaster of the city of Mobile, was indicted and convicted of embezzling certain moneys of the United States, to the amount of $1,652.59.

There were four counts in the indictment, to one of which a demurrer was sustained, and upon two others defendant was acquitted. The fourth count, upon which he was convicted, charged that 'the said George S. Moore, being then and there an assistant, clerk, or employ e in or connected with the business or operations of the United States post office in the city of Mobile, in the state of Alabama, did embezzle the sum of sixteen hundred and fifty-two and 59/100 dollars ($1,652.59), money of the United States, of the value of sixteen hundred and fifty-two and 59/100 dollars ($1,652.59), the said money being the personal property of the United States.'

Moore, having been sentenced to imprisonment at hard labor, sued out this writ of error.

M. D. Wickersham and W. H. McIntosh, for plaintiff in error.

Asst. Atty. Gen. Whitney, for the United States.

Mr. Justice BROWN delivered the opinion of the court.

Defendant was indicted under the first section of the act of March 3, 1875, 'to punish certain larcenies, and the receivers of stolen goods' (18 Stat. 479), which enacts 'that any person who shall embezzle, steal, or purloin any money, property, record, voucher, or valuable thing whatever, of the moneys, goods, chattels, records, or property of the United States, shall be deemed guilty of felony,' etc.

The principal assignment of error is to the action of the court in overruling a demurrer to the fourth count of the indictment, which charges, in the words of the statute, that 'the said George S. Moore, being then and there an assistant, clerk, or employ e in or connected with the business or operations of the United States post office in the city of Mobile, in the state of Alabama, did embezzle the sum of _____, money of the United States, of the value of _____, the said money being the personal property of the United States.'

Embezzlement is the fraudulent appropriation of property by a person to whom such property has been intrusted, or into whose hands it has lawfully come. It differs from larceny in the fact 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.

It is objected to the indictment in this case that there is no direct allegation that defendant was an assistant, clerk, or employ e in or connected with the business or operations of the post office at Mobile; that the money of the United States is not identified or described; and that there is no allegation that it came into the possession of the defendant by virtue of his employment.

The act in question has never been interpreted by this court, nor has our attention been called to any case where it has received a construction in this particular, except that of McCann v. U. S., 2 Wyo. 274, decided in the territorial supreme court of Wyoming, in which the allegation was that 'McCann, * * * at and within the district aforesaid, twenty thousand pounds of sugar * * * of the goods, chattels, and property of the United States of America, then and there being found, then and there feloniously and fraudulently did embezzle, steal, and purloin,' etc. This allegation was held to be defective in charging a mere legal conclusion, 'leaving it impossible to determine whether the offense was committed, and the conclusion correct.' It was said that the indictment for this offense must set forth the actual fiduciary relation and its breach; that the indictment did not identify the offense on the record, and did not secure the accused in his right to plead a former acquittal or conviction to a second prosecution for the offense. It was held that the words 'to embezzle' were equivalent to the words 'to commit embezzlement,' and that a count in the words of the statute was not sufficient; that 'all the ingredients of fact that are elemental to the definition must be alleged, so as to bring the defendant precisely and clearly within the statute. If that can be done by simply following the words of the statute, that will do; if not, other allegations must be used.' The general principle here alluded to has been applied by this court in several cases. U. S. v. Carll, 105 U. S. 611; U. S. v. Cooke, 17 Wall. 168; U. S. v. Cruikshank, 92 U. S. 542.

In the case of U. S. v. Northway, 120 U. S. 327, 7 Sup. Ct. 580 the word 'embezzle' was recognized as having a settled, technical meaning of its own, like the words 'steal, take, and carry away,' as used to define the offense of larceny. In this case the allegation was that the defendant, 'as such president and agent' (of a national bank), 'then and there had and received in and into his possession certain of moneys and funds of said banking association, * * * and then and there, being in possession of the said' defendant, 'as such president and agent aforesaid, he, the said' defendant, 'then and there * * * wrongly, unlawfully, and with intent to injure and defraud said banking association, did embezzle and convert to his * * * own use.' In respect to this, it was said to be quite clear that the allegation was sufficient, as it distinctly alleged that the moneys and funds charged to have been embezzled were at the time in the possession of the defendant as president and agent. 'This necessarily means,' said the court, 'that they had come into his possession in his official character, so that he held them in trust for the use and benefit of the association. In respect to those funds, the charge against him is that he embezzled them by converting them to his own use. This we think fully and accurately describes the offense of embezzlement under the act by an officer and agent of the association.'

In the case of Claassen v. U. S., 142 U. S. 140, 12 Sup. Ct. 169, an allegation similar in substance and effect was also held to be sufficient. The indictment, said the court, 'avers that the defendant was president of a national banking association; that by virtue of his office he received and took into his possession certain bonds (fully described), the property of the association; and that, with intent to injure and defraud the association, he embezzled the bonds and converted them to his own use. On principle and precedent, no further averment was requisite to a complete and sufficient description of the crime charged.'

The cases reported from the English courts and from the courts of the several states have usually arisen under statutes limiting the offense to certain officers, clerks, agents, or servants of individuals or corporations; and the rulings that the agency or fiduciary relation must be averred, as well as the fact that the money embezzled had come into the possession of the prisoner in that capacity, are not wholly applicable to a statute which extends to every person, regardless of his employment, or of the fact that the money had come into his possession by virtue of any office or fiduciary relation he happened to occupy. These cases undoubtedly hold, with great uniformity, that the relationship must be averred in the exact terms of the statute, that the property embezzled must be identified with great particularity, and that it must also be averred to have come into the possession of the prisoner by virtue of his fiduciary relation to the owner of the property.

Thus, in Com. v. Smart, 6 Gray, 15, it was held that an indictment which averred that the defendant 'was intrusted' by the owner 'with certain property, the same being the subject of larceny' (describing it), 'and to deliver the same to' the owner 'on demand,' and afterwards 'refused to deliver said property to said' owner, 'and feloniously did embezzle and fraudulently convert to his own use, the same then and there being demanded of him by said' owner, was fatally defective, by reason of omitting to state the purpose for which the defendant was intrusted with the property, or what property he fraudulently converted to his own use. So in People v. Allen, 5 Denio, 76, under a statute limiting the offense to clerks and servants, it was held that a count...