Henry v. United States

• Decision Date: 01 December 1919
• Docket Number: 3203.
• Citation: 263 F. 459
• Parties: HENRY v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

263 F. 459

HENRY v. UNITED STATES.

No. 3203.

United States Court of Appeals, District of Columbia.

December 1, 1919

Submitted November 3, 1919.

Appeal from the Supreme Court of the District of Columbia.

D. T Wright and T. M. Wampler, both of Washington, D.C., for appellant.

J. E Laskey, U.S. Atty., and J. B. Archer, Asst. U.S. Atty., both of Washington, D.C.

VAN ORSDEL, Associate Justice.

This appeal is from a judgment adjudging appellant, defendant below, guilty of the crime of embezzlement.

Defendant was member of a partnership doing a banking and stock brokerage business in the District of Columbia under the firm name of Lewis Johnson & Co. The charge is that certain certificates of corporate stock were deposited with defendant and one Woodruff for sale, and wrongfully and feloniously converted to their own use by hypothecating them as collateral security for a loan negotiated through a bank in this city. The indictment was in four counts, but it was submitted to the jury on the first and third. John Helmus owned the certificates set out in court 1, and Mary E. Helmus the certificates in count 3. The two offenses charged growing out of the same transaction, were consolidated in a single trial.

Section 834 of the Code, under which defendant was indicted, provides as follows:

'If any agent, attorney, clerk, or servant of a private person or copartnership, or any officer, attorney, agent, clerk, or servant of any association or incorporated company, shall wrongfully convert to his own use, or fraudulently take, make away with, or secrete, with intent to convert to his own use, anything of value which shall come into his possession or under his care by virtue of his employment or office, whether the thing so converted be the property of his master or employer or that of any other person, copartnership, association or corporation, he shall be deemed guilty of embezzlement, and shall be punished by a fine not exceeding one thousand dollars, or by imprisonment for not more than ten years, or both.'

The degree of the offense, however, is fixed by the provisions of section 851a of the Code (as added by Act March 3, 1913, c. 107, 37 Stat. 727), as follows:

'Whoever shall be guilty of any offence defined in sections eight hundred and thirty-four * * * of the Code of Law of the District of Columbia shall, where the thing, evidence of debt, property, proceeds or profits be of the value of not more than thirty-five dollars, be punished by imprisonment for not more than one year or a fine of not more than five hundred dollars, or both.'

On a verdict of guilty as indicted, defendant was sentenced on each count to imprisonment in the penitentiary for a term of four years.

To sustain a conviction under the statute of the greater offense, it must be alleged and proved that the value of the property embezzled is over $35. In the present case, the value of the stock was alleged; but the government failed to adduce proof of either its actual or market value. There is evidence that a tentative selling price was discussed between the owner and defendant at the time the certificates were deposited for sale. It also appears that they were hypothecated as collateral security for a loan of $4,000. Such evidence is not sufficient to justify an inference of the actual or market value of the stock at the date of its conversion. It creates, at most, an inference of indefinite value. To the same effect is a mere discussion or suggestion of a selling price between the parties. There are two elements which enter into a loan upon collateral security-- the credit of the borrower, and the value of the property hypothecated. No legal inference can be indulged that the value of the property put up as security is greater than or equal to the amount of the loan. Its mere function as collateral is not even proof of either its actual or market value.

In any event, the conviction for the greater offense cannot be sustained; since the court instructed the jury that--

'It is not necessary that the government should prove the market value of the stock of the Mergenthaler Linotype Company. The statute under which the indictment was found is satisfied if it had any value at the time it was hypothecated, and the fact that the money was borrowed on the security of this stock, if it was, is evidence of value.'

The value of the property converted is a material element of the offense charged, and it must not only be alleged, but, like all other statutory elements defining the crime, it must be proved by competent evidence to the satisfaction of the jury beyond a reasonable doubt. In cases of this sort, the jury should be instructed to find definitely the value of the property alleged to have been embezzled, or, at least, that it had a value of over $35. In the present case, the court, by the above instruction, withdrew from the consideration of the jury the issue of the actual or market value of the stock. We must assume that the jury followed the instruction of the court. A verdict was rendered, finding defendant guilty as charged in the indictment, which verdict, on its face, purports to be a finding of the value of the stock at the amount named in the indictment. This finding not only is not supported by the evidence, but it is contrary to the instructions of the court and the whole theory upon which the case was tried and submitted to the jury. In other words, the verdict fails to respond to the case submitted to the jury and the case considered by it.

But it is urged by counsel for the government that proof of value should not be limited to market value; since there were no transactions on the exchanges at the time of the conversion here charged, or between July, 1914, and January, 1915, due to the opening of the great war in Europe. It is not necessary to limit the proof to the market value of the stock at a given date, if conditions forbid its establishment by competent proof. Actual value of the stock may be proved by the testimony of persons familiar with the affairs of the company, its assets, and the dividend-earning capacity of the stock, and by individual sales of stock at or near the date when the conversion occurred. Actual value, thus established, furnishes a proper basis upon which the jury may make a finding. The rule in such cases is well stated in Brinkerhoff-Farris Co. v. Home Lumber Co., 118 Mo. 447, 461, 24 S.W. 129, 133, as follows:

'Generally, the measure of damages for the conversion of stocks is their market value at the time of conversion; but when, as in the case at bar, no market value can be established by the prices current, it seems to us perfectly competent to resort to other modes of proof to establish its actual value, and this may very properly be done by proof of its dividend earning capacity; the value of the assets of the corporation and by individual sales of stock not under compulsion.'

While this rule was announced in a civil action for damages, we perceive no reason for the application of a different rule in criminal cases.

But it is said that it was the duty of the defendant, through his counsel, to submit for allowance a proper instruction on the question of value. Counsel for defendant requested the court to give the following instruction:

'In case you find a verdict of guilty under the first count, then you must determine the value of the certificates described in the first count, and must determine their value from the evidence alone; and before you can reach any figure of value, you must find that the evidence has proven that particular value beyond any and all reasonable doubt; if the evidence fails to prove any certain figure of value beyond a reasonable doubt, then it is your duty to fix the value at a nominal sum, that is to say, one cent.'

The request for this instruction was also made as to the third count of the indictment. It is unnecessary to consider whether or not the court properly refused this instruction on the ground that it may have been improperly worded or misleading; since it was sufficient to call the attention of the court to the point involved, and therefore imposed upon the court the duty of properly instructing on the issue of value. This obligation the court sought to discharge by giving the instruction here complained of, and to the giving of which defendant duly excepted. No duty devolved upon the defendant to go further in his efforts to prevent the court from stepping into the error of overlooking the statute fixing the degrees of the crime

No; but the law imposes on him the duty of clearly stating his

charged. The court and counsel for the government are presumed to know the law, and the duty is not imposed upon the defendant to make the government's case and to carefully steer the court clear of error to his certain conviction.

It was the duty of the government, if it had a case, to convict defendant; and defendant, both by the Constitution and the law, was relieved from lending aid to his own condemnation, even to the extent of keeping silent. No new or advanced thought has entered into our system of jurisprudence which justifies the court in departing from those long-established safeguards with which the law surrounds the citizen when faced by his accusers at the bar of justice. If the necessity exists for the relaxation of the strict rules of criminal practice, the remedy is with the legislative, and not the judicial, department of the government.

Defendant is here charged with two offenses, based upon a single act of conversion. The theory of the prosecution is that, since part of the stock was owned by John Helmus and part by his mother though converted by a single act, the ownership establishes two independent offenses. This is not the...