Gibbs v. State, Criminal 720

• Decision Date: 15 December 1930
• Docket Number: Criminal 720
• Parties: W. H. GIBBS, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

293 P. 976

37 Ariz. 273

W. H. GIBBS, Appellant, v. STATE, Respondent

Criminal No. 720

Supreme Court of Arizona

December 15, 1930

APPEAL from a judgment of the Superior Court of the County of Pima. Fred W. Fickett, Judge. Judgment reversed and cause remanded with directions that the defendant be granted a new trial.

Mr Lynn D. Smith, Messrs. Richey & Richey, and Mr. John W Mayes, for Appellant.

Mr. K Berry Peterson, Attorney General, Mr. Riney B. Salmon, Assistant Attorney General, and Mr. Claude Smith, for the State.

OPINION

ROSS, J.

The defendant was convicted of embezzlement. He appeals from the judgment and the order overruling his motion for a new trial. He complains of the information not stating facts sufficient to constitute a public offense, and we therefore set out the charging part thereof:

"That on or about the said 9th day of June, 1929, one M. A. Barker was the clerk, agent and servant of the Calumet and Arizona Mining Company, a corporation, (New Cornelia Mines at Ajo, Arizona,) and by virtue of his employment as such clerk, agent and servant, the said M. A. Barker was entrusted with, and there came into his possession, custody and control, the following described property, to-wit: One Hundred Five (105) sacks of cement of the value of Ninety-one and 35/100 Dollars ($91.35) gold coin of the United States of America said cement being then and there the personal property of the said Calumet and Arizona Mining Company, a corporation; that the said M. A. Barker, after said property had come into his care, custody and control, as aforesaid, and while having it in his care, custody and control as such clerk, agent and servant did then and there wilfully, unlawfully, fraudulently and feloniously embezzle said property and appropriate it to his own use and to a use and purpose not in the due and lawful execution of his trust as such clerk, agent and servant; that said defendant W. H. Gibbs, on the date aforesaid and divers dates theretofore, and in said precinct, county and state, did wilfully, unlawfully, fraudulently and feloniously, being present and not being present at its commission advise, encourage, aid, abet and procure, the said M. A. Barker to commit said crime of embezzlement in the manner and form and by the means aforesaid; that the said M. A. Barker committed said crime in pursuance of, by reason of, and on account of said advice, encouragement, aid, abetting and procurement of said defendant W. H. Gibbs; that said defendant W. H. Gibbs is, therefore, guilty of the commission of said offense, contrary to the form, . . . " etc.

His assignments 1, 2, 3, 4, 5 and 8 are directed at the sufficiency of the information. The point made is that the information fails to show that defendant Gibbs sustained any fiduciary relation to the Calumet & Arizona Mining Company, and that, under the statute, section 4765 of the Revised Code of 1928, such relation must exist before the party can embezzle property.

That such is the law we believe to be well settled.Phelps v. State, 25 Ariz. 495, 219 P. 589. This provision of the law, that a trust relation must exist, we think must be construed in connection with section 4491, Revised Code of 1928, which abolishes the distinction between accessories before the fact and the party who actually commits the crime. That section provides that all persons concerned in the commission of a crime, whether it be a felony or a misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, are principals in any crime so committed.

The information charges that defendant Gibbs did aid, abet, advise and encourage Barker to commit the crime, and he is, therefore, if anything, a principal. In the annotation to Quillin v. State, 5 A.L.R. 773, at page 782 (79 Tex. Cr. Rep. 497, 187 S.W. 199), is found this statement:

"There are some offenses which are so defined by statute or by the common law that they may be committed only by certain persons or classes of persons. Nevertheless, a person who is not within the class of those by whom the crime may be directly perpetrated may, by aiding and abetting a person who is within the scope of the definition, render himself criminally liable."

This statement is well sustained by cases from many jurisdictions. While the definition of the crime of embezzlement confines the offense to fiduciaries and the like, a person not within that category may be convicted of aiding or abetting the commission of the crime. Bishop v. State, 118 Ga. 799, 45 S.E. 614; State v. Rowe, 104 Iowa 323, 73 N.W. 833; State v. McCartey, 17 Minn. 76 (Gil. 54); Brown v. State, 18 Ohio St. 497; Mills v. State, 53 Neb. 263, 73 N.W. 761; Quillin v. State, supra. We think, when the provisions of the criminal statutes are construed together, it is apparent that one may, by aiding, advising and counseling the commission of a crime, become a principal in such crime, even though he could not under the statute have committed the offense himself.

The demurrers to the information, as also the objection by the defendant to the introduction of any evidence thereunder, were properly overruled.

It is contended that the verdict should not have been permitted to stand, for the reason that the prosecution failed to produce evidence to prove that the Calumet & Arizona Mining Company was a corporation either de facto or de jure. In Phelps v. State, supra, we held that it was necessary to allege in an information charging embezzlement that the property claimed to have been embezzled must be that of a legal entity, such as a person or corporation or company. The present information meets that requirement, and that case, although relied upon by defendant, is no authority for the point that he now makes. Here the legal capacity of the employer is properly alleged. It would seem that, if it is necessary to allege ownership in a legal entity capable of holding property, it is also necessary to prove it. 20 C.J. 480, § 75; People v. Leonard, 106 Cal. 302, 39 P. 617 Higbee v. State, 74 Neb. 331, 104 N.W. 748; Calkins v. State, 18 Ohio St. 366, 98 Am. Dec. 121. The defendant did not raise this point in the trial. He made no motion for a directed verdict for failure of evidence on that issue. Apparently all the parties in the trial proceeded upon the assumption that the Calumet & Arizona Mining Company was in fact a duly organized corporation. If this were the only error in the record, we would hesitate before reversing the case. On a new trial it will be an easy matter for the prosecution to make proof of that fact, and we would advise that it do so.

Throughout the testimony of the various witnesses there was more or less confusion occasioned by the use, by attorneys and witnesses, of "C. & A. Mining Company," "Calumet and Arizona...