Dotson v. State

• Decision Date: 08 December 1888
• Citation: 10 S.W. 18,51 Ark. 119
• Parties: DOTSON v. STATE
• Court: Arkansas Supreme Court

10 S.W. 18

51 Ark. 119

DOTSON v. STATE

Supreme Court of Arkansas

December 8, 1888

APPEAL from Sebastian Circuit Court, J. S. LITTLE, Judge.

Reversed and remanded.

The appellant pro se.

1. "Paper currency of the United States" not sufficiently descriptive or definite. Bish. Cr. Pro., vol. 2 p. 321; 59 Ala. 73; 2 Gratt., 716.

2. It was misleading to instruct the jury that if the defendant lost the money gambling they would presume a fraudulent intent to convert to his use. This eliminates intent from crime. The intent to do a thing is always open to rebuttal. 1 Bish. Cr. Pro., 1099; 4 Ga. 14.

3. The verdict not supported by the evidence.The money was paid in paper currency, but there was no proof of the size or denomination. 2 Bish. Cr. Pro., 703. No gold was received at all, and the description of the paper currency being insufficient, there was no evidence to base the verdict on.

Dan. W Jones. Attorney General, for appellee.

1. The description of the money was sufficient. 34 Ark. 159; 1 Whart. Cr. Law, sec. 355; 4 Sneed, 357; 138 Mass. 433; 3 Hawk., 618.

2. The effect of the court's instruction was to tell the jury that the conversion of the money to his own use was a circumstance from which a criminal intent might be inferred. See 34 Ark. 446.

OPINION

BATTLE, J.

O. M Bourland delivered a horse to appellant to sell for him. Appellant sold the horse for $ 125 and received the money, but failed to deliver it to Bourland. On account of this failure he was indicted for embezzlement. The indictment charges as follows: "The said Lewis Dotson, on the 15th day of January, 1888, in the county and district aforesaid, then being a bailee of one O. M. Bourland to sell a certain horse, the property of said O. M. Bourland, of the value of one hundred and twenty-five dollars, and as such bailee having received said horse into his care, custody and charge, and then as such bailee sold the horse for the sum of one hundred and twenty-five dollars, and having received said money into his hands as such bailee, which said money was described as follows: Ten bills of the paper currency of the United States of America, of the denomination and value of ten dollars each; twenty bills of the paper currency of the United States of America, of the denomination and value of five dollars each; six bills, of the paper currency of the United States of America, of the denomination and value of twenty dollars each; six pieces of the current gold coin of the United States of America, of the denomination and value of twenty dollars each, did then and there wilfully and unlawfully make way with, embezzle and convert to his own use the money described aforesaid, the property of said O. M. Bourland, without his consent so to do, against the peace and dignity of the state of Arkansas." It also charges that he received a check for the $ 125, and wilfully, feloniously and unlawfully, embezzled, made way with, and converted it to his own use, without the consent of Bourland. He demurred to the indictment; and the court overruled his demurrer; and he was tried and convicted. Should he have been convicted?

The statute under which he was indicted reads as follows: "If any carrier or other bailee shall embezzle, or convert to his own use, or make way with or secrete with intent to embezzle, or convert to his own use, any money, goods, rights in action, property, effects or valuable security, which shall have come to his possession, or have been delivered to him, or placed under his care or custody, such bailee, although he shall not break any trunk, package, box or other thing in which he received them, shall be deemed guilty of larceny, and on conviction shall be punished as in cases of larceny." Mansfield's Digest, sec. 1640.

The term "bailee" when used in statutes declaring what acts of embezzlement shall constitute a public offense, is not to be understood, says Mr. Wharton, "in its large, but in its limited sense, as including simply those bailees who are authorized to keep, to transfer, or to deliver, and who receive the goods first bona fide, and then fraudulently convert." "When it does not appear that any fiduciary duty is imposed on the defendant to restore the specific goods of which the alleged bailment is composed, a bailment under the statute is not constituted, though it is otherwise when a specific thing, whether money, securities, or goods, is received in trust and then appropriated." 1 Wharton Cr. Law. (9th Ed.), sec. 1055; Krause v. Commonwealth, 93 Pa. 418; Watson v. State, 70 Ala. 13.

By 24 and 25 Vict. c. 96, s. 3, it is provided that "whosoever, being a bailee of any chattel, money, or valuable security, shall fraudulently take or convert the same to his own use, or the use of any person other than the owner thereof, although he shall not break bulk or otherwise determine the bailment, shall be guilty of larceny, and may be convicted there of upon an indictment for larceny."

In Reg. v. Aden, 12 Cox Cr. C. 512, Kelly, C. B., in delivering the opinion of the court, said: "In this case, a sum of money was placed in the hands of a boatman for the purpose of purchasing coals for the prosecutor from a colliery company, which coals the prisoner was to pay for with the money so placed in his hands by the prosecutor. The prisoner did not buy any coals, but paid away part of the money in satisfaction of a debt owing by him to the colliery company, and failed to procure the coals. This was a clear case of larceny of money entrusted to the prisoner as a bailee, within 24 and 25 Vict., c. 96, s. 3."

In Reg. v. Hassall, 8 Cox Cr. C. 491, the defendant was a treasurer of a money-club, and in his official capacity received small weekly payments from each member, "and had authority, with the secretary's consent, to lend the club money to members." Under the rules of the club a periodical division of the money among the members' was required to be made. He was indicted for larceny of moneys paid to him by the members of the club, under the fourth section of 20 and 21, Vic. c., 54, which provided: "If any person, being a bailee of any property, shall fraudulently take or convert the same to his own use, or the use of any person other than the owner...