Hampston v. State

• Decision Date: 21 November 1928
• Docket Number: Criminal 687
• Parties: BESSIE M. HAMPSTON, Appellant v. STATE, Respondent
• Court: Arizona Supreme Court

271 P. 872

34 Ariz. 372

BESSIE M. HAMPSTON, Appellant v. STATE, Respondent

Criminal No. 687

Supreme Court of Arizona

November 21, 1928

APPEAL from a judgment of the Superior Court of the County of Cochise. Dave W. Ling, Judge. Judgment reversed and cause remanded, with directions that appellant be granted a new trial.

Mr Alexander Murry and Mr. Frank E. Thomas, for Appellant.

Mr John W. Murphy, Attorney General, Mr. Frank J. Duffy Assistant Attorney General, and Mr. James T. Gentry, County Attorney, for the State.

OPINION

ROSS C. J.

The charging part of the information is in the following words:

"The said Bessie M. Hampston on or about the 7th day of June, 1927, and before the filing of this information, at the County of Cochise, State of Arizona, was then and there the clerk, agent, and servant of H. E. Wootton and H. E. Wootton, as guardian of the persons and estates of William H. Wootton, James E. Wootton, Daniel Wootton, and Harry E. Wootton, minors, and then and there by virtue of her said employment as such clerk, agent, and servant, there came into the possession, care, custody, and control of her, the said Bessie M. Hampston, one hundred dollars ($100.00) in lawful money of the United States of America, of the value of one hundred dollars ($100.00) in lawful money of the United States of America, the personal property of H. E. Wootton and H. E. Wootton, as guardian of the estates and persons of said William H. Wootton, James E. Wootton, Daniel Wootton, and Harry E. Wootton, minors; and she, the said Bessie M. Hampston, after the said one hundred dollars ($100.00), in lawful money of the United States of America, had come into her possession, care and custody as aforesaid, did then and there, to wit: in the County of Cochise, State of Arizona, on or about the 7th day of June, 1927, willfully, unlawfully, fraudulently and feloniously convert, embezzle, and appropriate the same to her own use, not in the due and lawful execution of her said trust as such clerk, agent and servant, contrary to the form, force and effect of the statute in such cases made and provided, and against the peace and dignity of the State of Arizona."

This information was demurred to on the grounds that it does not substantially conform to sections 934, 935 and 936, of the Penal Code of 1913, and on the ground that the facts stated therein do not constitute a public offense.

The only claimed defect in the information as pointed out in the appellant's assignments, briefs and oral argument, is that it fails to show the fiduciary relation of agent and principal at the time of the alleged embezzlement. The allegation of the existence of such relation "on or about the 7th day of June, 1927," is positive and direct, as is also the allegation that on that date appellant came into the possession of $100 of the principal's money; and it is also quite as positively and directly alleged that "on or about the 7th day of June, 1927," appellant embezzled said $100. We think it would be straining the imagination to an unwarranted degree to hold with appellant's contention that there is no allegation of the trust relation as of the time of the alleged embezzlement. That such relation existed at the time of the alleged embezzlement is as definitely and directly averred as that it existed at all.

Appellant relies upon Thomas v. Territory, 9 Ariz. 180, 80 P. 320, to sustain her contention, but in that case the indictment failed to show a continuance of the trust relation from July 13, 1904, when the principal's property came into the agent's custody, to October 5, 1904, when it was averred he embezzled it. Because of the absence of an allegation of the trust relation on the last-named date, the indictment was held bad; but here the allegation of the trust and the conversion by the agent coincide in time. The information, as to form and substance, complies with sections 934, 935 and 936, supra, and sets out all the elements constituting the offense of embezzlement by a clerk, agent, or servant, as defined by section 505 of the Penal Code of 1913, under which it was drawn.

The verdict of the jury was:

"We, the jury duly impaneled and sworn in the above entitled action, upon our oaths do find the defendant guilty."

Upon this verdict appellant was sentenced to the state prison for a term of not less than four and not more than six years. It is now contended that it was error upon the part of the court to accept this verdict and to render judgment thereon for felonious embezzlement, because the law makes the punishment depend upon the value of the property embezzled, and that, no value being found, the court could not know whether to fix the punishment as for a felony or for a misdemeanor. It is contended in this connection that embezzlement, like larceny, is distinguished into two degrees for the purpose of punishment, and that therefore section 1090 of the Penal Code making it the imperative duty of the jury, when a crime is distinguished into degrees, to find the degree thereof of which the defendant is guilty, is controlling and should be observed by the jury.

The statute makes it the duty of the court, when "authorized to pass sentence, to determine and impose the punishment" (section 12, Penal Code), and in embezzlement cases the punishment is the same as prescribed for larceny (section 511, Penal Code). In other words, in larceny when the property taken exceeds in value $50 it is designated grand larceny, and is punishable by imprisonment in the state prison for not less than one nor more than ten years (sections 484, 486, Penal Code), and in other cases, where the value of the property is $50 or less, it is designated as petit larceny, and is made punishable by fine or imprisonment in the county jail, or both (sections 485, 487, Penal Code). The same values determine the punishment for embezzlement. It would seem, therefore, to be indispensably necessary that the value of the property embezzled, as much so as in larceny cases, should be found by the verdict of the jury, before the court, whose duty it is to pass sentence, could determine and impose a proper and lawful punishment. In every information or indictment for embezzlement or larceny (with some exceptions) of the higher grade is included the lower grade, the distinguishing difference being the value of the property embezzled or stolen, and, under an information or indictment for the higher grade, a conviction may be had for the lower grade if the item of value reduces the offense from a felony to a misdemeanor. Pen. Code, § 1092.

While the value of the property in this case is fixed by the information at $100, unless the general verdict of "guilty" imports a finding by the jury that the value is that alleged or a value exceeding $50, the court had no basis upon which to sentence defendant to the state prison. The verdict is not that defendant is "guilty as charged," or "guilty in the manner and form charged in the information." It is simply that fendant is "guilty." This is a finding...