Hinds v. Territory of Arizona

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

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 defendant fraudulently appropriated the property to his own use and to a use and purpose not in the due and lawful execution of his trust. State v. Trolson, 21 Nev. 419, 32 P. 930; State v. Combs, 47 Kan. 136, 27 P. 818; State v. Noland, 111 Mo. 473, 19 S.W. 715.

OPINION

DAVIS, J.

The indictment under which the defendant was convicted charged "That the said Justin T. Hinds, at the county of Yavapai and territory of Arizona, on or about the 22d day of September, 1902, then and there being and acting as the manager of the Prescott Realty Company, a corporation, and as such manager, and by virtue of his said employment, being then and there intrusted by the State of Arizona Mines Corporation, a corporation, with a certain check, and receiving and having said check in his possession by virtue of his said trust, to wit, a check for the sum of seven hundred and thirty-one dollars and sixty cents, of the value of seven hundred and thirty-one dollars and sixty cents, in lawful money of the United States; said check being then and there the property of the said State of Arizona Mines Corporation, and received by the said Justin T. Hinds, as aforesaid, in the name and on account of the said State of Arizona Mines Corporation; and the said defendant, Justin T. Hinds, having thereafter, on the said 22d day of September, 1902, cashed the said check at the Bank of Arizona, in Prescott, Arizona, and received the proceeds thereof, to wit, the sum of seven hundred and thirty-one dollars and sixty cents, into his own possession and upon his own account, did then and there unlawfully, feloniously, and fraudulently embezzle and convert to his own use, and not to any use or purpose in the due and lawful execution of his said trust, all of the proceeds of said check, to wit, the sum of seven hundred and thirty-one dollars and sixty cents, contrary to the form, force, and effect of the statute," etc. There was a demurrer to the indictment, and the overruling of the demurrer is assigned as error. It is insisted that the indictment is not "direct and certain," either as regards "the offense charged," or "the particular circumstances . . . necessary to constitute a complete offense," and also "that the facts stated do not constitute a public offense." It is conceded that the prosecution in this case is based upon section 458 of the Penal Code, and the jury was so instructed by the court. The section referred to reads as follows: "Every officer of this territory, or of any county, city or other municipal corporation or subdivision thereof, and every deputy clerk, or servant of any such officer, and every officer, director, trustee, clerk, servant or agent of any association, society or corporation (public or private) who fraudulently appropriates to any use or purpose not in the due and lawful execution of his trust, any property which he has in his possession, or under his control by virtue of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, is guilty of embezzlement." The next following four sections define how and under what circumstances embezzlement may also be committed by persons occupying various other relations of trust and confidence, such as carrier, trustee, banker, merchant,...