Hubbard v. United States, 7772.

• Decision Date: 28 October 1935
• Docket Number: No. 7772.,7772.
• Citation: 79 F.2d 850
• Parties: HUBBARD v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

79 F.2d 850 (1935)

HUBBARD v. UNITED STATES.

No. 7772.

Circuit Court of Appeals, Ninth Circuit.

October 28, 1935.

Anthony Savage, John J. Sullivan, and H. Sylvester Garvin, all of Seattle, Wash., for appellant.

J. Charles Dennis, U. S. Atty., and F. A. Pellegrini, Asst. U. S. Atty., both of Seattle, Wash., and Sam E. Whitaker, Sp. Asst. to the Atty. Gen.

Before WILBUR, DENMAN, and MATHEWS, Circuit Judges.

DENMAN, Circuit Judge.

The appellant, George D. Hubbard, United States Collector of Customs for Collection District 30, was jointly indicted with others in the District Court of Washington in two counts charging conspiracy. In a separate indictment, which was consolidated with the others for trial, Hubbard alone was named for violation of United States Criminal Code, § 97 (18 US CA § 183), providing for the punishing of any Internal Revenue officer "who shall embezzle or wrongfully convert to his own use any money or property which may have come into his possession or under his control in the execution of such office or employment."

The separate indictment alleged that Hubbard "did * * * knowingly, wilfully, unlawfully and feloniously convert to his own use and thereby embezzle" approximately 84 quarts of intoxicating liquor which had come into his possession and control in the course of execution of his office. Verdicts of acquittal were rendered in favor of all defendants on the conspiracy counts. Hubbard was convicted on the embezzlement charge, and appeals from judgment thereon. The evidence offered in support of the charge is summarized in the bill of exceptions as follows: "Thereupon the plaintiff to sustain the issue upon its part called several witnesses whose testimony tended to show that the defendant had unlawfully converted intoxicating liquor and alcohol to his own use, and that he had delivered whiskey and alcohol to the United States Coast Guard Service and to the United States Coast and Geodetic Survey without first obtaining authority so to do from the Commissioner of Customs as prescribed by the Regulation of the Secretary of the Treasury promulgated under the Tariff Act of 1930, and that he authorized, and certified to the destruction of intoxicating liquors and alcohol, which destructions had not been carried out in the manner prescribed by the Regulations of the Secretary of the Treasury promulgated under the Tariff Act of 1930."

The assignments of error raise issues only as to the sufficiency of the indictment and the propriety of certain challenged instructions.

The first matter for our consideration is the sufficiency of the indictment, brought here by seasonable demurrer, exception, and assignment of error. We think the indictment good against demurrer, although perhaps a bill of particulars might properly have been requested. The challenged pleading sufficiently describes the time, the place, the property converted, and the felonious nature of its misappropriation. A similar indictment was held good in Ford v. United States (C. C. A.) 3 F.(2d) 104, 105. It is unnecessary, in prosecutions under this statute, to allege ownership of the misappropriated goods in any particular person, United States v. Davis, 243 U. S. 570, 572, 37 S. Ct. 442, 61 L. Ed. 906; if it were required, the allegation that the liquor came into the defendant's possession by virtue of federal office is a sufficient statement that it was property of the United States. Hoback v. United States (C. C. A.) 284 F. 529, 532.

At the close of the trial the jury was charged generally as to both conspiracy and embezzlement. Notwithstanding that the general tenor of the instructions was admirably impartial and fair to the defendant, error crept in, prejudicial to the accused, and of such a nature as to make reversal mandatory.

On the embezzlement count, the judge charged as follows: "The Collector of Customs, during all of the times mentioned in the indictments, was an officer of the United States government. As a part of his duties there came into his possession and control alcohol and intoxicating liquors. It was his duty, as Collector of Customs, upon receipt of alcohol and intoxicating liquors that came into his possession and control, to cause the same to be destroyed unless the said alcohol and intoxicating liquors could be used for government purposes after authority for such use had been duly and regularly obtained from the Commissioner of Customs. Under the law he had no right to convert the alcohol or intoxicating liquors to his own use or to give it to any other person, or to exchange it for other alcohol without such authority. Therefore, if you find from the evidence that the defendant, George D. Hubbard, made any disposition of alcohol or intoxicating liquors other than the destruction of the same in accordance with the law, or the use of the same for governmental purposes after authority had been duly and regularly obtained, then the said defendant is guilty of the crime of embezzlement as charged."

In assigning the above instruction as error, appellant urges that it widens the scope of embezzlement far beyond the limits of that offense as set by long precedent and common understanding. Particularly objectionable, he asserts, is that portion of the charge which would make felonious any and every disposition of the liquor other than (1) destruction in accordance with law; (2) duly authorized use for governmental purposes. A brief review of judicial definitions of the term "embezzle" in United States Courts will demonstrate that appellant's point is well taken. Embezzlement is not a common-law offense, but a statutory engraftment of criminal liability upon a species of common-law conversion. It is generally taken to be the fraudulent or felonious conversion of property which has rightfully come into the possession of the converter. The statute under which the present indictment was laid uses the word "embezzle" without definition, but that the term is to be given the significance just indicated is made clear by the case of Moore v. United States, 160 U. S. 268, 271, 16 S....