State v. Brewington
| Decision Date | 15 November 1910 |
| Citation | 25 Del. 71,78 A. 402 |
| Court | Court of General Sessions of Delaware |
| Parties | STATE v. JOHN BREWINGTON |
Court of General Sessions, New Castle County, November Term, 1910.
INDICTMENT (No. 20, November Term, 1910), for embezzlement as bailee, it being charged that the defendant, as the bailee of the property of the person therein named, embezzled and fraudulently converted the same to his own use. It was shown that the prosecuting witness gave $ 5.00 to the defendant to have it changed for her; that he, having accepted the money for that purpose, kept it and fraudulently converted it to his own use.
Verdict, guilty.
Walter H. Hayes for the state.
Horace G. Eastburn for the defendant.
OPINION
WOOLLEY, J. charging the jury:
Gentlemen of the jury:--The indictment under which this case is tried describes the defendant as the bailee of the property of Clara Earl, and charges that as bailee he embezzled and fraudulently converted the same to his own use. The state represents that Clara Earl gave $ 5 to the defendant with instructions to have it changed; that the defendant accepted the money for that purpose, but instead of having it changed he kept it and fraudulently converted it to his own use. The defendant claims that if the money was in fact so given to him, he had no recollection either of receiving or misappropriating it, as he was at the time under the influence of liquor to an extent that not only robbed him of any recollection of the transaction, but made him incapable to form an intent to commit crime.
At common law as well as in this state, larceny has been defined to be the wrongful taking and carrying away of the personal property of another with a felonious intent to convert it to the taker's own use, without the consent of the owner. State v. Kavanaugh, 20 Del. 131, 4 Penne. 131, 53 A. 335. In this definition of the crime of larceny there are two gaps through which have escaped many wrongdoers who have taken and converted to their own use the property of others. The first gap is made by the theory that in order to convict one of the crime of larceny, he must have taken property that at one time was in the possession of the owner; and the second is made by the requirement of the definition that the taking, at its inception, must have been wrongful and with a felonious intent to convert the property to the taker's own use. In order, therefore, to make penal two phases of theft that were not before penal, two statutes were enacted, the first of which, being directed to the cure of the first defect in the law of larceny, was enacted by the General Assembly of 1879, and established the crime of embezzlement where property within the reach or possession of a servant or agent was by him wrongfully converted, even though the property had not been received into the possession of the master or employer (Laws Del. Vol. 16, c. 153), and the second of which, being directed to the cure of the second defect in the same law, was enacted by the General Assembly of 1893, to meet the case of an unlawful conversion after a lawful taking, and provided "that if any person, being a bailee of money or other property the subject of larceny, shall embezzle or fraudulently convert the same to his own use, he shall be deemed guilty of a misdemeanor, and upon conviction" shall be punished (Laws Del. Vol. 19, c. 782). It thus appears that by these statutes embezzlement is made a crime supplementary to the common-law crime of larceny, and may be defined to be the fraudulent appropriation to one's own use of the goods or money of another, which came into his hands lawfully and which were intrusted, with the owner's consent, to his care as the owner's agent, servant, bailee, trustee or other fiduciary representative.
In this case the defendant is charged with embezzlement of money in his capacity as bailee, to sustain which the state must prove to you beyond a reasonable doubt, first, that the defendant was the bailee of property belonging to Clara Earl, which was the subject of larceny; and, second, that as such bailee he embezzled or fraudulently converted same to his own use.
A bailment in such a case consists in the delivery of some personal property, the subject of larceny, by one person to another, to be by him held or handled according to the purpose of the delivery, upon a contract, express or implied that after the purpose has been fulfilled it shall be redelivered to the person who first delivered it, or be otherwise dealt with according to his direction. A bailee is one to whom such property is so delivered. If you find that Clara Earl delivered...
To continue reading
Request your trial
-
U.S. ex rel. Clark v. Anderson
...such misconduct as the indictment charged. Delaware long ago recognized that embezzlement is not a crime at common law. State v. Brewington, 1910, 25 Del. 71, 78 A. 402. By force of the unreversed holding of the trial court, it is the rule of Clark'sprosecution that new 635 is void for vagu......
-
State v. Rogers
...was a bailment of specific funds for a specific purpose and was within the statutes defining embezzlement by a bailee. State v. Brewington, 25 Del. 71. (2) The information is sufficient to charge embezzlement by defendant as a bailee. Sec. 3329, R.S. 1919; State v. Stevens, 281 Mo. 639; Sta......
-
State v. Rogers
...was a bailment of specific funds for a specific purpose and was within the statutes defining embezzlement by a bailee. State v. Brewington, 25 Del. 71. (2) The is sufficient to charge embezzlement by defendant as a bailee. Sec. 3329, R. S. 1919; State v. Stevens, 281 Mo. 639; State v. Cross......
-
Ridgel v. State
... ... in order to make the offense of larceny complete ... Larceny ... under our statute is substantially the same as at common law ... See Blackstone's Commentaries, § 230; Hawkins' ... Pleas of the Crown, ch. 33, § 1; State v ... Brewington, 25 Del. 71, 78 A. 402; Wharton's ... Criminal Law, vol. 2, § 1095; 25 Cyc. p. 22; 2 Bish. New ... Crim. Law, § 758 ... The ... animal alleged to have been stolen was placed by its owner, ... McCandless, in the custody of the appellant. For McCandless ... testified that ... ...