State v. Butler

• Decision Date: 06 May 1884
• Citation: 21 S.C. 353
• Parties: STATE v. BUTLER.
• Court: South Carolina Supreme Court

21 S.C. 353

STATE v. BUTLER.

Supreme Court of South Carolina.

May 6, 1884

1. An indictment charged that the defendant, being secretary of a certain society, received the sum of $20, which he took possession of and held for the use of said society as such secretary, and that he did fraudulently and feloniously steal, take, and carry away, and convert to his own use, the said sum of money, whereby he committed a breach of trust with fraudulent intent, and by force of the statute in such case made and provided was guilty of the crime of grand larceny, contrary to the form, & c. Held , that the indictment was sufficient under the statute that declares breach of trust with fraudulent intent to be larceny.

2. This statute did not create any new offence, but only extended the crime of larceny at common law to cases in which the property stolen was in the legal possession of the accused at the time of its conversion.

3. One who has acted as secretary of a society cannot deny the existence of such society when prosecuted for a fraudulent breach of his trust.

4. To constitute breach of trust a criminal offence, there must be a fraudulent intent. Therefore the Circuit judge erred in refusing to charge the jury, when so requested, " that the mere fact of not paying over the money by the defendant was not sufficient evidence in itself to convict him of a breach of trust with fraudulent intent."

Before FRASER, J., Spartanburg, March, 1884.

The indictment in this case was against Howard Butler under the statute which declares breach of trust with fraudulent intent to be larceny. The opinion states the case.

Mr. J. S. R. Thomson , for appellant.

Mr. Solicitor Duncan , contra.

It is ordered that the judgment of the Circuit Court in this case be reversed, and that the case be remanded for a new trial. The reasons for this judgment will be given in the opinion hereafter to be filed. Let the remittitur be sent down immediately.

OPINION

MR CHIEF JUSTICE SIMPSON.

The defendant was indicted for an alleged breach of trust. He was tried and convicted at a Court of Sessions for Spartanburg county in 1884. The indictment contained two counts, in each of which it was alleged substantially that, being the secretary of the " Star Banner Lodge of the Independent Order of the Knights of Wise Men," he received the sum of twenty-three dollars, which he took possession of and held for the use of the said order as said secretary; and that he did fraudulently and feloniously steal, take, and carry away and convert to his own use, the said sum of money, whereby he committed a breach of trust with fraudulent intent, and by force of the statute in such case made and provided was guilty of the crime of grand larceny, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the said state.

The questions involved in the appeal are, first, as to the sufficiency of the indictment, i. e. , whether grand larceny can be charged in an indictment under the breach of trust act; second, whether the defendant by acting as secretary was estopped from denying the incorporation of the order; and, third, whether it was error on the part of the Circuit judge to refuse to charge as...