Hinds v. Territory of Arizona, Criminal 178

• Court: Supreme Court of Arizona
• Writing for the Court: DAVIS, J.
• Citation: 76 P. 469,8 Ariz. 372
• Docket Number: Criminal 178
• Decision Date: 26 March 1904
• Parties: JUSTIN T. HINDS, Defendant and Appellant, v. TERRITORY OF ARIZONA, Plaintiff and Respondent

76 P. 469

8 Ariz. 372

JUSTIN T. HINDS, Defendant and Appellant,
v.
TERRITORY OF ARIZONA, Plaintiff and Respondent

Criminal No. 178

Supreme Court of Arizona

March 26, 1904

APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Yavapai. R. E. Sloan, Judge. Reversed.

The facts are stated in the opinion.

R. M. Ling, and J. D. Wakely, for Appellant.

Certainty is required in criminal pleadings in order to notify the defendant as well as the court of the nature of the offense charged. Thompson v. State, 26 Ark. 330; Dillingham v. State, 5 Ohio St. 280; Cochran v. United States, 157 U.S. 290, 15 S.Ct. 628, 39 L.Ed. 705.

To the end that an indictment may serve the purpose indicated, it is a general rule that it must charge all the facts and circumstances which constitute the offense, and not mere conclusions of the pleader. Giles v. State, 89 Ala. 50, 8 So. 121; State v. Williams, 14 Tex. 98; United States v. Mann, 95 U.S. 580, 24 L.Ed. 531.

In Nassitts v. State, 36 Tex. App. 5, 34 S.W. 957, the court said: "The indictment charging embezzlement is fatally defective which fails to allege agreement to carry, and by whom the defendant was intrusted with the property, and what disposition he was to make of same."

No intendment can aid a charge where the facts and circumstances alleged do not bring the accused within the prohibition of the law. State v. Hall, 72 Iowa 525, 34 N.W. 315; People v. Olmsted, 74 Hun, 323, 26 N.Y.S. 818; Pettibone v. United States, 148 U.S. 197, 13 S.Ct. 542, 37 L.Ed. 419.

The object for which the money embezzled was originally received by the accused should be set out in the indictment. It was so held in Territory v. Maxwell, 2 N. Mex. 250.

No individual section of our statutes on embezzlement prescribes the complete offense; said sections, in so far as they apply to the offense, must therefore be taken collectively.

All indictments upon statutes must state all the circumstances which constitute the definition of the offense of the act, so as to bring the defendant precisely within it. They must pursue the precise technical description of the act itself. It is necessary that the defendant be brought within all the material words of the statute, and nothing can be taken by intendment. People v. Clark, 10 Mich. 310; People v. Richards, 1 Mich. 217, 51 Am. Dec. 75, Wharton on Criminal Law, 132; People v. Taylor, 96 Mich. 576, 56 N.W. 27, 21 L.R.A. 287.

Allegation of a demand upon defendant, or a concise narration of positive circumstances showing the same to be unnecessary or impossible, is absolutely imperative as a condition precedent to criminal prosecution for embezzlement under the Arizona statutes prescribing the offense.

Demand must be made. State v. Pierce, 7 Kan. App. 418, 53 P. 278; People v. Page, 116 Cal. 386, 48 P. 326.

Intent to defraud must be alleged. McKnight v. United States, 111 F. 735; United States v. Carll, 105 U.S. 611, 26 L.Ed. 1135; United States v. Brazeau, 78 F. 465.

"In every crime or public offense there must exist a union or joint operation of act and intent, or criminal negligence." Eilers v. State, 34 Tex. App. 344, 30 S.W. 811.

Felonious intent is an essential ingredient of embezzlement. State v. Marco, 32 Or. 175, 50 P. 799; People v. Galland, 55 Mich. 628, 22 N.W. 81; People v. Hurst, 62 Mich. 276, 28 N.W. 838; State v. Reilly, 4 Mo.App. 392; Walker v. State, 117 Ala. 42, 23 So. 149.

E. W. Wells, Attorney-General, for Respondent.

As a general rule, it is sufficient if an indictment or information charges an offense in the language of the statute; and even the statutory words need not be strictly pursued, but others conveying the same meaning may be used. State v. McGaffin, 36 Kan. 315, 13 P. 560; People v. Potter, 35 Cal. 110.

Embezzlement is an offense created by statute, and the overwhelming weight of authority is that it is sufficient to charge the crime in the language of the statute. State v. Turner, 10 Wash. 94, 38 P. 864; People v. Tomlinson, 66 Cal. 344, 5 P. 509.

The further contention of appellant that the indictment must set forth the purpose for which the property was intrusted to the defendant, and the terms of the trust, is not sustained by the weight of authority. That it is not necessary to do so is in accord with the modern authorities. People v. Hill, 3 Utah, 344, 3 P. 75; State v. Turner, 10 Wash. 94, 38 P. 864; State v. Whiteman, 9 Wash. 402, 37 P. 659; Commonwealth v. Bennett, 118 Mass. 443.

Where a demand is not made an ingredient of the crime itself, it is not necessary to allege a demand in the indictment. Wallis v. State, 54 Ark. 611, 16 S.W. 821; State v. Flournoy, 46 La. Ann. 1518, 16 So. 454; Edelhoff v. State, 5 Wyo. 19, 36 P. 627; Hollingsworth v. State, 111 Ind. 289, 12 N.E. 490.

Nor is it necessary to specifically allege the fraudulent intent in the indictment. Such an intent is sufficiently charged in the allegation that the...