Phelps v. State

• Citation: 219 P. 589,25 Ariz. 495
• Decision Date: 26 October 1923
• Docket Number: Criminal 569
• Parties: GUY PHELPS, Appellant, v. STATE, Respondent
• Court: Supreme Court of Arizona

219 P. 589

25 Ariz. 495

GUY PHELPS, Appellant, v. STATE, Respondent

Criminal No. 569

Supreme Court of Arizona

October 26, 1923

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Reversed and remanded.

Mr. C H. Young and Mr. Weldon J. Bailey, for Appellant.

Mr John W. Murphy, Attorney General, and Mr. A. R. Lynch, Mr Earl Anderson and Mr. E. W. McFarland, Assistant Attorneys General, for the State.

OPINION

McALISTER, C. J.

Guy Phelps, appellant, and Alfred Loomis were jointly informed against for the embezzlement of a Ford touring car which was entrusted to them by the Yellow Jacket Taxi Company on the twenty-sixth day of November 1922. Appellant was tried separately, convicted and sentenced to a term in the state prison, and from this judgment of conviction and an order denying his motion for a new trial he appeals.

The charging part of the information upon which he was tried and convicted is as follows:

"The said Alfred Loomis and Guy Phelps, on or about the 3d day of December, 1922, and before the filing of this information at and in the county of Maricopa, state of Arizona, being then and there entrusted by the Yellow Jacket Taxi Company with a certain Ford touring automobile, motor No. 5491452, license No. 1-7185 (Arizona), of the value of $400, gold coin, lawful money of the United States of America, and having said Ford touring car in their possession by virtue of the said trust did then and there willfully, unlawfully, fraudulently and feloniously convert, embezzle and appropriate the said Ford touring car to their, the said Alfred Loomis' and Guy Phelps', own use, not in the due and lawful execution of their, the said Alfred Loomis' and Guy Phelps', said trust."

To this information appellant demurred generally, and also specifically upon the ground that it is insufficient and defective in that it does not show whether the alleged injured party was a person, a corporation, an individual, a partnership, a joint stock company, or an association of individuals, and therefore fails to name any entity capable of owning property which might be the subject of embezzlement, and upon the further ground that it does not name the owner of the property alleged to have been embezzled by the defendant. This demurrer was overruled, and the order of the court in this respect is the first error complained of. Does the information allege the crime of embezzlement as defined by the statute?

Chapter 6 of title 14 of the Penal Code of 1913 is entitled "Embezzlement," and the first section thereof (500) defines this offense as "the fraudulent appropriation of property by a person to whom it has been entrusted," and in the five succeeding paragraphs the different relations of trust under which it may be committed are given. In paragraph 501 the conditions and circumstances under which officers of the state, county, city, or other municipal corporation, their deputies, clerks or servants, and officers, directors, trustees, clerks, servants or agents of associations, societies or corporations may be guilty of it appear; in 502 those under which carriers and persons having under their control personal property to transport for hire may commit it are found; in 503 those under which trustees, bankers, brokers, merchants, attorneys, agents, assignees in trust, executors, administrators, collectors or persons otherwise entrusted with or having under their control property for the use of another may be guilty of it are given; in 504 those under which bailees, tenants, lodgers or persons with power of attorney for the sale or transfer of property may violate it appear; and in 505 those under which clerks, agents, or servants may transgress it are likewise found.

It would appear that only persons occupying one of the fiduciary relations mentioned in these provisions can be guilty of this offense, and that only property which reaches them by virtue of their trust can be the subject of it, because embezzlement embraces only those relations enumerated in the statute defining the offense. State v. Keith, 126 N.C. 1114, 36 S.E. 169. Under the common-law crime of larceny persons who fraudulently appropriated property which had come into their possession by virtue of a trust or fiduciary relation could not be convicted, because in that offense it was necessary that the taking be unlawful. As a result persons guilty of appropriating the property of another, which had reached them by virtue of the fiduciary relation they sustained toward the owner of that property, escaped punishment, and a desire to reach this class of offenders led to the enactment of a statute making it a crime to fraudulently appropriate such property. All the states have such statutes, and under them the individual characteristic of the crime is the fiduciary relation of the defendant. Hence, the relation by virtue of which the defendant acquires possession of the property is a necessary element of the offense, and should clearly appear in the information. "In any case it must be alleged that by virtue of a fiduciary relation the accused took into his possession the property in question" (9 R.C.L., par. 31, p. 1289), and "there is no question that the defendant's fiduciary character must be averred." State v. Roubles, 43 La. Ann. 200, 26 Am. St. Rep. 179, 9 So. 435.

"In State v. Ives, 128 La. 273, Ann. Cas. 1912C, 901, 54 So. 796, the court uses this language:

"It is well settled to constitute embezzlement the accused must be occupying a fiduciary relation. It is important, under the section before cited, that the fiduciary relation should be alleged in order that it may appear that a crime has been committed, for it is a condition that an act has been committed by an employee in one of the capacities mentioned in the section. Mr. Bishop says that, besides the formal part of the indictment, the defendant must stand in a fiduciary relation to another person named within the terms of the statute; that he was the servant, clerk, treasurer, employee in some capacity. It must further appear that bu virtue of such relation the accused received the amount or property for his master or employer, and that he did embezzle the amount in one of the ways denounced by the statute."

In a note to the case just cited found at page 903, Ann. Cas. 1912C, it is said:

"As the purpose of an embezzlement statute is to punish the violation of relations of a fiduciary character, the existence of such a relations is one of the essential elements of the crime of embezzlement. See the note to Eggleston v. State, 87 Am. St. Rep. 17, 35, 37. In view of this fact the rule is that the fiduciary relation of the accused to the prosecuting witness must appear from the indictment. Hinds v. Territory, 8 Ariz. 372, 76 P. 469; Kibs v. People, 81 Ill. 599; Com. v. Barney, 115 Ky. 475, 74 S.W. 181; Farmer v. Com., 28 Ky. L. Rep. 1369, 91 S.W. 1129; State v. Roubles, 43 La. Ann. 200, 26 Am. St. Rep. 179, 9 So. 435; State v. Stevenson, 91 Me. 107, 39 A. 471; Griffin v. State, 4 Tex. App. 390; McCann v. United States, 2 Wyo. 274; Wilbur v. Territory, 3 Wyo. 268, 21 P. 698. And see the reported case. 'proof of embezzlement will not support an indictment for larceny. It logically follows, therefore, that an indictment for larceny by embezzlement must distinguish the offense by apt averment, and the distinguishing element is the breach of some trust or confidence. That is the gist of the crime, and therefore must be charged. No authority can be found to the contrary.' State v. Stevenson, supra."

The information alleges that appellant was entrusted with the car by the Yellow Jacket Taxi Company, but does not state the relation by virtue of which this was done. It fails either to designate the capacity by name or to give the facts from which it can be deduced, though either would have been sufficient. If it alleged that the defendant was entrusted with the car as bailee, agent or servant, or in whatever capacity that fits the situation if no one of these did, no question could arise as to which section of the statute it is based upon, or the fiduciary relation in which the car was received. This would have been in the language of the statute, and would have satisfied it. The Court of Appeals of California, in People v. O'Brian, 8 Cal.App. 641, 97 P. 679, used the following language in construing one of the provisions of the embezzlement statute of that state, from which Arizona's was borrowed in its entirety:

"It having been alleged in the language of the statute that the defendant received the certificate of deposit as bailee, it was not necessary for the pleader to allege the nature of the bailment, nor the particulars or circumstances thereof. As was said in People v. Gordon, 133 Cal. 328, 85 Am. St. Rep. 174, 65 P. 746, and affirmed in People v. Goodrich, 142 Cal. 216, 75 P. 796: 'the essential elements of embezzlement are the fiduciary relations arising where one entrusts property to another, and the fraudulent appropriation of the property by the latter. The origin or particulars of the relation need not be stated.' Stating that the property was entrusted to defendant as bailee sufficiently showed the creation of a fiduciary relation, and it was not necessary to allege the circumstances of the felonious conversion."

In Storms v. State, 81 Ark. 25, 98 S.W. 678, the Supreme Court of Arkansas said:

"The indictment is good. The term 'bailee' is used in the statute. Section 1839, Kirby's Dig....