State v. Browning
| Decision Date | 30 October 1905 |
| Citation | 47 Or. 470,82 P. 955 |
| Parties | STATE v. BROWNING. [*] |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Multnomah County; Arthur L. Frazer Judge.
A.J Browning was convicted of embezzlement, and he appeals. Affirmed.
McCants Stewart, for appellant.
A.M Crawford, Atty. Gen., John Manning, Dist. Atty., and H.B Adams, Deputy Dist. Atty., for the State.
The defendant, A.J. Browning, was charged in the municipal court for the city of Portland with the crime of embezzling $20, and, having been convicted thereof and sentenced to imprisonment in the county jail, he appealed from such judgment to the circuit court, where the cause was tried anew, resulting in a like judgment, from which he appeals to this court.
His counsel contends that the court in which the action was instituted did not have jurisdiction of the subject-matter, and, this being so, that the circuit court erred in not reversing the judgment of the municipal court and discharging the defendant. The authority by which the police court assumed to act in the matter is to be found, if at all, in the following provisions of the charter of the city of Portland. The municipal court for the city of Portland. The municipal court for the city of Portland has therein the jurisdiction and authority of a justice of the peace. Sp.Laws Or. 1903, p. 131, § 329. An examination of the statute in respect to the authority of the latter court discloses that a justice's court has jurisdiction of the crime of larceny, committed or triable in the county in which such court is held, where the punishment therefor may be imprisonment in the county jail or by fine. B. & C. Comp. § 2194; Laws Or. 1903, p. 295. Where the value of the property stolen does not exceed the sum of $35, a justice's court has jurisdiction of the crime, and upon conviction of the person charged therewith, may sentence him to imprisonment in the county jail for not less than one month nor more than one year, or may impose a fine of not less than $25, nor more than $100. B. & C. Comp. § 1798. The statute alleged to have been violated by the defendant, is, so far as involved herein, as follows: "If any *** employé *** of any private person *** shall embezzle or fraudulently convert to his own use *** any money *** of another *** which shall have come into his possession, or be under his care, by virtue of such employment, such *** employé *** shall be deemed guilty of larceny, and upon conviction thereof shall be punished accordingly." Id. § 1805.
The question presented by this appeal is whether or not the legislative declaration that a person who converts to his own use the property of another which has lawfully come into his possession "shall be deemed guilty of larceny," etc., confers upon a justice's court authority to hear and determine the guilt or innocence of a person charged with the commission of embezzlement, when the value of the personal property converted does not exceed $35, though the latter offense is not specified in the list of crimes of which such court has jurisdiction. To uphold the jurisdiction of the municipal court, and thereby to affirm the judgment in the case at bar the clause "shall be deemed guilty of larceny," etc., must be so construed as to render the term "embezzlement" equivalent to "larceny." Larceny was a crime at common law, and consisted of a trespass, committed in the taking of the personal goods or chattels of another, with intent to convert them to the taker's use, without the consent of the owner. Embezzlement was not a common-law offense, but has been defined as a crime by statute. This crime cannot be committed unless the defendant is in the lawful possession of the property at the time of the conversion. "As trespass," says Mr. Justice Mulkey, in Johnson v. People, 113 Ill. 99, "is an injury to the possession only, it logically and legally follows that no one in the lawful possession of goods can commit larceny of them, for it were idle and absurd to talk of one committing an injury to his own possession." ...
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