Kent v. State

• Decision Date: 19 April 1920
• Docket Number: 345
• Citation: 220 S.W. 814,143 Ark. 439
• Parties: KENT v. STATE
• Court: Arkansas Supreme Court

220 S.W. 814

143 Ark. 439

KENT v. STATE

No. 345

Supreme Court of Arkansas

April 19, 1920

Appeal fro Little River Circuit Court; James S. Steel, Judge affirmed.

Judgment affirmed.

Shaver & Locke, for appellant.

1. The indictment is not sufficient; it is fatally defective because it omits the words "with intent to embezzle or convert to his own use." Kirby's Digest §§ 1830, 1837; 58 Ark. 98, 105; 111 Id. 180, 186; 118 Id. 44.

2. Jones and Keith were partners as a matter of law. 74 Ark. 437; 145 U.S. 61; 63 Ark. 518.

3. There is a fatal variance between the indictment and the proof. 111 Ark. 186; 71 Id. 418.

4. The court erred in admitting testimony as to certain checks as the indictment does not charge embezzlement of checks nor the conversion of checks into money. 117 Ark. 108.

5. The remarks of the court as to certain checks were prejudicial.

6. The court erred in giving and refusing instructions. 117 Ark. 108; 85 Id. 500.

John D. Arbuckle, Attorney General, and J. B. Webster, Assistant, for appellee.

1. The indictment was sufficient as it follows the language of the statute. 111 Ark. 180; Kirby's Digest, §§ 1837, 1830.

2. The court properly submitted the question whether Jones and Keith were partners to the jury on proper instructions. 74 Ark. 442.

3. There was no variance between the indictment and proof. The testimony shows defendant received cash, and whether gold, silver or currency does not matter.

4. There was no error in the instructions, but, if so, the objections were general, and defendant did not ask for proper ones. 129 Ark. 182; 114 Id. 409.

OPINION

WOOD, J.

Appellant appeals from a judgment convicting him of embezzlement.

The indictment, omitting the caption and conclusion, is as follows: "The said J. T. Kent, in the county and State aforesaid, on the 5th day of October, 1919, being then and there over the age of 16 years, being the agent of W. A. Jones, and having then and there in his hands and possession as the agent of the said W. A. Jones, as aforesaid, three hundred and seventy dollars in gold, silver and paper money of the value of $ 370, the property of the said W. A. Jones, as aforesaid, did unlawfully, fraudulently and feloniously make away with, embezzle and convert to his own use the said sum of $ 370, without the consent of the said W. A. Jones."

Section 1837 of Kirby's Digest, among other things, provides: "If any * * * agent * * * of any private person * * * or any person employed in any such capacity, shall embezzle or convert to his own use, or shall take, make way with, or secrete with intent to embezzle or convert to his own use, without the consent of his master or employer, any money, * * * whatsoever belonging to any other person which shall have come into his possession, or under his care or custody, by virtue of such * * * agency * * * he shall be deemed guilty of larceny and on conviction shall be punished as in case of larceny."

The appellant contends that the indictment is fatally defective because it omits the words, "with intent to embezzle or convert to his own use."

The indictment was framed under the above statute. It follows substantially its language and sets forth the essential particulars which constitute the offense of embezzlement as therein defined.

In criminal jurisprudence the words "embezzle" and "embezzlement" have a well understood meaning. The property or thing which may be the subject-matter of embezzlement as well as the classes of fiduciary persons that may commit the offense and the penalty attached thereto may be varied according to the statutes of the different States. Nevertheless, there is no difference of opinion as to what the word "embezzlement" or the act of embezzlement means.

Mr. Bishop says, "The act of embezzlement consists of a fraudulent appropriation by one of another's goods to his own use, or at least to depriving the true owner of them. * * * Embezzlement is the fraudulent misappropriation, by a servant or other person within the terms of the statute of embezzlement, of such property as the statute makes the subject of it, under the circumstances designated therein, to the use of the embezzler, or otherwise to the injury of the owner thereof.' 2 Bishop's New Criminal law, sec. 325; 2 Wharton's Criminal Law, sec. 1256, p. 1467; 1 McClain's Criminal Law, sec. 622.

After setting up the beneficiary relationship and alleging that by virtue thereof the appellant had in his possession funds which were the property of his principal and that such funds were fraudulently and feloniously made way with, embezzled, and converted to his own use by the appellant, it is wholly unnecessary to use the words "with intent to embezzle or convert to his own use." Such addition would have been but another example of that inexcusable tautology so frequently found in legal documents, pleadings, and statutes. The statute, itself, is tautological in the use of words which mean the same thing. The indictment is not to be condemned because it eliminates some of the words which are synonymous. The indictment in clear and unmistakable language sets forth all the particulars necessary to charge the statutory crime of embezzlement. Fleener v. State, 58 Ark. 98, 23 S.W. 1; Farrell v. State, 111 Ark. 180, 163 S.W. 768. See, also, Gardner v. State, 130 Ark. 253.

While it is undoubtedly essential to the crime of embezzlement that there be a fraudulent intent on the part of the fiduciary to convert the property of another to his own use (Fleener v. State, supra), yet that charge is unquestionably made in the use of the word "embezzle" to say nothing of the other words employed. The case is readily distinguished in this respect from the case of State v. Bills, 118 Ark. 44, 176 S.W. 114. For in that case the indictment charged that Bills did unlawfully, feloniously, and knowingly receive into and have in his possession property which he knew at the time of receiving same had been stolen. The indictment did not charge that he received them with "intent to deprive the true owner thereof." We held that these words were an essential part of the statutory offense. No other words used in the indictment would convey the meaning intended by the use of the words above quoted.

But such is not the case here. The word "embezzle," as we have shown, conveys the meaning that the offender in the act of converting or making way with another's property did so with the intent of converting it to his own use.

The appellant contends that the undisputed evidence shows that Jones and the appellant were partners in the funds alleged to have been embezzled, and the court so instructed the jury as a matter of law. The only testimony on this issue as abstracted by the appellant is as follows: "The kind of contract I had with Mr. Kent was that I would buy and pay for the mules and he would handle the mules, sell them, swap them, and what net profit was made when we would get our expenses, the feed, and expense of getting the mules back we were to get half of it. We split the...