Fleener v. State

Decision Date04 July 1893
Citation23 S.W. 1,58 Ark. 98
PartiesFLEENER v. STATE
CourtArkansas Supreme Court

Appeal from Saint Francis Circuit Court, GRANT GREEN, JR., Judge.

Reversed and remanded.

George Sibly for appellant.

1. The indictment is bad. It does not directly or sufficiently charge that the defendant was the agent or clerk of an incorporated company; that he made way with money without the consent of his employer; that the money "belonged to another person;" that it "came to his possession by virtue of his employment." 12 Ark. 608. It should have described the money. 48 Ark. 36; 51 Id. 119; Id. 114; 2 Bish. Cr. Law (9th ed), sec. 374; 6 Am. & Eng. Enc. Law, par. 4; 29 Ark. 68; 42 Ark. 517; 37 Id. 444; Id. 447; 54 Id. 611. It should have charged that appellant received it "from another person." 2 Bish. Cr. Law, sec. 365-7; 6 Am. & Eng. Enc. Law, p. 477; 78 N.Y. 377. Also the intent to injure and defraud. 6 Am. & Eng. Enc. Law, p. 496 c. and note 3.

2. There was no proof that the Pacific Express Company was an incorporated company.

3. It was error to refuse the second instruction. 2 Bish. Cr. Law secs. 372 to 375, 376, 379; 6 Am. & Eng. Enc. Law, pp. 454-5 par. 2 and note 2.

4. Appellant gave bond with a foreign guarantee company as surety--;the company paid the amount claimed to be due; the State has now no interest in the matter. 6 A. & E. Enc. Law p. 462 and note. The statute was not intended to be a debt collector. 2 Bish.sec. 3-376, 374; 6 A. & E. Enc. Law, 469 and note, and p. 476, n. 3.

5. The money was properly charged up to defendant on his books, and hence it was not embezzlement. 6 Am. & E. Enc. Law, p. 469, note 2 and 473 and note; 16 Neb. 179.

James P. Clarke, Attorney General, for appellee.

1. The indictment follows closely sec. 1638, Mansf. Dig. The word money has a definite legal meaning. 2 Bish. Cr. Law, sec. 357; 44 Tex. 620; Mart & Yerger (Tenn.), 129. A sufficient excuse was made for not particularly describing the money. 48 Ark. 40. The precise words of a statute need not be followed, a substantial compliance is sufficient. 47 Ark. 488. The words "any other person" mean any person other than the person indicted. 15 Wend. 147. The word "feloniously" sufficiently charges the intent. 1 Whart. Cr. Law, sec. 977; 34 Ark. 159; 50 N.W. 472.

BUNN, C. J. Powell, J., being absent, did not sit in this cause.

OPINION

BUNN, C. J.

The defendant, A. W. Fleener, was indicted at the October term, 1892, of the St. Francis circuit court, for the crime of embezzlement; at the March term, 1893, found guilty and sentenced to imprisonment in the penitentiary for the period of one year. Motions in arrest of judgment and also for a new trial were overruled, and appeal taken to this court.

The indictment, omitting formal parts, is as follows, to-wit: The said A. W. Fleener, on the 15th day of June, 1892, in the county of St. Francis, aforesaid, then and there being over the age of sixteen years, and being the agent of the Pacific Express Company, at Wheatley, Arkansas, said Express Company being a corporation Organized and incorporated under the constitution and laws of the State of Nebraska, and doing business in the State of Arkansas and county of St. Francis; and having in his possession as such agent as aforesaid, and then and there having come into his possession as such agent as aforesaid, two hundred and fifty-one dollars and sixty-four cents current money of the United States, the particular denominations and kind of which is to the grand jury unknown, the property of the Pacific Express Company, unlawfully, feloniously and fraudulently did make way with, embezzle and convert to his own use, without the consent of the Pacific Express Company as aforesaid, against the peace and dignity of the State of Arkansas."

To this indictment a general demurrer in short on the record was interposed.

Section 1638, Mansfield's Digest, under which the indictment presumably was found, is as follows, to-wit: "If any * * * officer, agent, clerk or servant of any incorporated company, or any person employed in such capacity, shall embezzle or convert to his own use, without the consent of his master or employer, any money, goods * * * belonging to any other person, which shall have come into his possession * * * by virtue of such employment or office, he shall be deemed guilty of larceny, and on conviction shall be punished as in cases of larceny."

The demurrer raises two or three questions as to the allegations of the indictment: first, that it is not explicit enough in alleging the agency of the defendant; secondly, that the money alleged to have been embezzled is not sufficiently described; thirdly, that it failed to allege that the money embezzled by him belonged to another person, meaning another person than the master; and, lastly, that the indictment does not allege that the money came into the possession of defendant by virtue of his employment.

The allegation that the defendant was "the agent of the Pacific Express Company at Wheatley, Arkansas," is sufficient.

The want of more particular and definite description of the money received and alleged to have been embezzled by the defendant is sufficiently excused by the recital that a more particular description Was unknown to the grand jury, and this meets the requirement suggested in State v. Ward, 48 Ark. 36, 2 S.W. 191.

While the language of our statute (sec. 1638, Mansfield's Digest) is rather obscure, in so far as the words "belonging to another person" are concerned, and may seem to justify a different construction--the construction given by the English courts--yet, in view of the very nice and technical distinction between larceny and embezzlement, we are constrained to adopt the construction given to similar words in New York, Missouri and Minnesota, and hold that "another person means another person than the person guilty of the embezzlement," in contradistinction to the English rule, which holds that the same words mean "another person other than the master." People v. Hennessey, 15 Wend. 147; State v. Porter, 26 Mo. 201; State v. Kent, 22 Minn. 41.

This is not in conflict with Powell v. State, 34 Ark. 693, which was an indictment against a general household servant, who, having the custody of some tools under the superior possession of the master, appropriated the tools to his own use. This was held to be larceny, and not embezzlement, and the decision is in accord with the weight of authorities. The same authorities hold that when the servant comes into possession of the property before the master, and his possession is by reason of his relation as such servant, and he appropriates it to his own use before it comes into the possession of the master, and while yet in his possession, the fraudulent appropriation thus made is embezzlement, and not larceny. See note 98 Am. Dec. 121, 126-129.

The rule of construction in New York, Missouri and Minnesota, and perhaps other States, is considered necessary in order that there be not a hiatus in the law, as there would otherwise seem to be.

The objection that the proof of the corporate existence of the injured party is not sufficient, we think, was properly overruled. A mere de facto corporation, it seems, may be the victim of embezzlement. Evidence of general reputation of corporate existence is regarded as sufficient in such cases. Burke v. State, 34 Ohio St. 79; Calkins v. State, 98 Am. Dec. 121. And if the same rule is to be applied in criminal as in civil cases, it would seem that one dealing with even an ostensible corporation, as such, is not permitted to deny its corporate capacity. Town of Searcy v. Yarnell, 47 Ark. 269, 1 S.W. 319; note to 79 Am. Dec. 437.

The State put in evidence the authenticated copies of articles of association and other papers alleged to have been necessary to the proper organization of such corporations in the State of Nebraska, and these are copied in the bill of exceptions. In a note to the bill of exceptions, as copied in the transcript, the clerk of the circuit court informs us that the statutes of Nebraska used in evidence had been taken out, and that he could not copy them in the transcript. So much thereof as pertained to the organization of corporations in that State and used as evidence should have been made part of the bill of exceptions, as they were part of the evidence in the case. Had we before us the copy used on the trial, in any other form than as part of the bill of exceptions, we could not legitimately make use of it. In the absence of this evidence, it is to be presumed that the action of the court in determining that the organization of the corporation thereunder was in conformity thereto is conclusive on us.

The defendant's own testimony sufficiently established the fact that he was the agent of the Pacific Express Company at Wheatley, Arkansas, and also that the company assumed to do business and was notoriously doing business, whether strictly according to law or not. It at least could be the victim of embezzlement, and a felonious deprivation of its property, it seems, ought to be the subject of our criminal law.

The third ground of the motion for new trial assigns as error the ruling of the circuit court in refusing to give to the jury the second instruction asked by the defendant. It is in words and figures as follows, to-wit:

"The mere failure to pay over to the Pacific Express Company the money in his hands by defendant, at the proper time, would not, of itself, constitute the offense of embezzlement, but, to constitute embezzlement, it must appear that the defendant did retain money of the Pacific Express Company, that came to his hands by reason of his agency, by attempting to, in some manner, conceal from the company the fact that he...

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