Compton v. State
| Decision Date | 27 November 1911 |
| Citation | 143 S.W. 897,102 Ark. 213 |
| Parties | COMPTON v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Lee Circuit Court; Hance N. Hutton, Judge; affirmed.
Judgment affirmed. Motion for rehearing denied.
Joseph W. House, George W. Murphy, Charles E. Daggett, R. D. Smith and H. F. Roleson, for appellant.
1. The motion in arrest of judgment should have been sustained. Embezzlement being purely a statutory offense, no offense is stated if there is no statute covering the particular charge in the indictment. In this case section 1837 of Kirby's Digest could not be applicable because that statute does not apply to public officers, nor agents of any public or municipal corporation. The term "incorporated company" applies only to private corporations. 22 N.Y 243. Even if it be held to apply to an officer of a public corporation, still, under its terms, the money must come into the hands of the defendant by virtue of his office. On the face of the indictment, it does not appear that the defendant was an officer into whose hands any public funds could legally come. If what the indictment states as facts are facts, it has no legal basis on which to stand. Finally, it does not conclude contra pacem. 19 Ark. 613; 47 Ark. 230; 56 Ark. 515; 34 Ark. 693; Kirby's Digest, § 7663. See also 22 N.Y. 245; 2 Bishop, Crim. Law, (5 ed.) §§ 352, 353, 360, 363; 74 N.W. 319; 124 U.S. 525, 31 L.Ed. 634; 33 Ky. L. Rep. 97, 112 S.W. 586; 110 Mo. 209, 19 S.W. 650; 26 O. St. 265; 47 N.E. 138; 119 S.W. 85; 77 Ark. 412; 8 Tex.App 406; 116 Mass. 1.
2. The court erred in giving on its own motion, and at the instance of the State's attorney, instructions which were in conflict with other instructions given at the request of the defendant. 77 Ark. 200; 76 Ark. 224; 65 Ark. 65.
Hal L Norwood, Attorney General, and William H. Rector, Assistant, for appellee.
1. The indictment sufficiently alleges and the evidence sufficiently shows that appellant converted the money of the school district to his own use with the intention to defraud the district. The indictment is sustainable either under section 1837 or 1842, Kirby's Digest. The evidence shows that he was in possession of the money by virtue of the fact that he was secretary of the school board, and as such was a public officer. Throop's Public Officers, § 7 (); Mechem's Public Offices & Officers, § 714, et seq.; 34 Ark. 562; 80 Ark. 263; 136 S.W. 947.
2. The disposition of the first proposition will dispose of the question of the sufficiency of the evidence to support the verdict. If the indictment is good, there is undoubtedly sufficient evidence to support the verdict.
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:
No. 10-4-1907.
Treasurer of Lee County, Arkansas:
"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, Arkansas, 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 Digest, § 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, employee, agent or attorney, of any private person, or of any copartnership, except clerks, apprentices, servants and employees within the age of sixteen years, or any officer, clerk, servant, employee, 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 statute. 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. 229, 250. 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." 2 Lewis' Sutherland, Stat. Con., (2 ed.) § 368. This rule of interpretation was recognized and applied by the court in the case of Matthews v. Kimball, 70 Ark. 451, 458. 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: So, too, in the case of Wallis v. State, 54 Ark. 611, in discussing the rule of ejusdem generis, the court said:
...
To continue reading
Request your trial
- St. Louis, Iron Mountain & Southern Railway Company v. State
- Kansas City Southern Railway Company v. State
- Holiman v. Roush
-
Heath v. State
... ... 431] prove ... intention to convert, will not now be heard to say that the ... motion should have been granted because the state had failed ... to show that the intention to convert came to him after he ... came into possession of the money ... In the ... case of Compton v. State, 102 Ark. 213, 143 ... S.W. 897, a school director drew and cashed a warrant for a ... sum in excess of a fee due an attorney for the district, paid ... the attorney his fee and converted the remainder to his own ... use. The director was indicted, tried, and convicted of ... ...