State v. Dudenhefer

• Decision Date: 04 November 1908
• Docket Number: 17,275
• Citation: 122 La. 288,47 So. 614
• Court: Louisiana Supreme Court
• Parties: STATE v. DUDENHEFER

47 So. 614

122 La. 288

STATE v. DUDENHEFER

No. 17,275

Supreme Court of Louisiana

November 4, 1908

Rehearing Denied November 30, 1908.

Appeal from Criminal District Court, Parish of Orleans; Joshua G Baker, Judge.

Ferdinand P. Dudenhefer was convicted of embezzlement, and he appeals. Affirmed.

Chandler Clement Luzenberg, for appellant.

Walter Guion, Atty. Gen., James Porter Parker, Dist. Atty., and Warren Doyle, Asst. Dist. Atty. (James Zachary Spearing, of counsel), for the State.

BREAUX C.J. PROVOSTY, J., concurs in the decree.

OPINION

BREAUX C.J.

The grand jury returned an indictment against the defendant for embezzlement in office, as tax collector for the Third district of the parish of Orleans.

From a sentence condemning him to pay an amount of $ 25,545.50, and five years' service at hard labor in the penitentiary, he appeals.

At the beginning, the first proposition is that the misappropriation was not committed by method specified in section 903 of the Revised Statutes, and that the indictment was not drawn under that section; that, if the indictment was drawn under that section, it was so drawn only in part, and there is duplicity in its terms.

To determine the question, we have taken up and carefully examined this indictment, in which defendant is charged with having misappropriated money of the state (stating the amount) by feloniously and wrongfully using, disposing of, concealing, and otherwise embezzling it in direct violation of law.

We are next brought to a consideration of the section under which the defendant was prosecuted. It concludes:

"An officer who converts to his own use in any way whatever, or shall use by way of investment, or use in any other manner than as directed by law, the public moneys with the collection of which he is intrusted. * * *" Section 903.

The law provides that the neglect or refusal to pay over on demand any public money in his possession shall be prima facie evidence of its conversion and embezzlement.

The penalty is a fine equal to the amount of money embezzled and imprisonment not exceeding five years.

It is true that the defendant was not expressly charged with having converted the money to his own use, or with having used it by way of investment, or loaned it, but he was charged in another clause with having feloniously and wrongfully used the amount stated.

The details setting forth the use made of the money need not be specifically set forth to the end of drawing a complete indictment for embezzlement against a public officer.

Under the terms of the law, the state is not necessarily concerned with the use which the officer has made of the money after the embezzlement.

Now, as relates to the meaning and direct import of the word "embezzlement," another point raised by the defendant in contending that it has not the meaning sought to be given to it by the prosecution:

On this point, we are led to consult precedents. Decisions of the court have their use after they have stood the test of time and experience. They are entitled to due weight, and they are at the same time also useful in labor saving, to an extent at least. If the decision is quite in point, it relieves in some degree from the necessity of the work of exhaustive discussion in order to sustain a proposition.

The word "embezzle" in the decision cited infra is defined as in itself meaning to appropriate to one's own use.

Here not only we have seen that the defendant was indicted for embezzlement, but the indictment specified that he as an officer had made wrongful and felonious use of public funds. This in itself has been held sufficient. State v. Wolff, 34 La.Ann. 1153.

Embezzlement is defined as a fraudulent appropriation to one's own use of the money and goods intrusted to one's care and control. The word is fully defined in "Words and Phrases," vol. 3, p. 2350, and the definition does not differ with the views herein expressed.

In Bishop's New Criminal Procedure, p. 322, the word "embezzlement" is equally as well defined. He says that the word "embezzlement" alone will suffice. It is well known in law. We leave this point with the statement that "embezzle" as used in the indictment means conversion of the property embezzled.

In answer to defendant's contention that the indictment is bad, both under section 903 and section 905 (another point in the case), we must say that the language of section 905 is not controlling; that the words in the indictment, which may also be found in that section (905), do not have the effect of rendering it bad. The indictment may be drawn, in charging an officer with embezzlement, under section 903, without taking from the last-mentioned section (905) any of its clauses. But the fact that the pleader has inserted certain words is not misleading or confusing; the words cannot be considered in the light of duplicity in pleading, as, despite the insertion of those words, the indictment under section 903 remained complete. It denounces as complete an offense for which an indictment may be found. Other words may be considered as surplusage.

At this time, it occurs to us to state that counsel for defendant cites the State v. Palmer Case, 32 La.Ann. 565, in which it was held that the indictment should have been confined to the provisions of one section in that case, to wit, section 907, instead of which it had been extended so as to include clauses of section 905. It was held that there was duplicity. The pleader sought to use clauses from each, and inserted them in the charge in the indictment. The court held that it was misleading and duplicitous.

In that decision the court stated that it is difficult to perceive how or wherein it is framed under section 907.

That is different from the case in hand, in which the indictment is confined to one section, and is not amenable to the objection here urged and sought to be sustained by reference to the decision cited. The clauses used in the indictment here are clear and specific, and are not confused by other expressions. It remains intact in meaning.

We note that the court holds in the cited case supra that while "embezzlement" necessarily includes conversion to his own use (which agrees with the views before expressed by us regarding the meaning of the word "embezzlement") "yet that neither embezzlement nor conversion to his own use includes every species of wrongfully using," cited in support of this decision identically the same section from Bishop which we have cited above regarding the word "embezzlement."

We must say that we found no fault with the decision. True, the court held in the said cited case that the charge of embezzlement did not include every species of wrongfully using, disposing of, and concealing, denounced in other sections than the one under which the indictment was drawn, thus, as before stated, confusing things.

Here the question is different. It is whether the indictment includes sufficient of section 903 to constitute embezzlement. We do not hold that the charge of embezzlement includes "every species of wrongfully using." We have naught to do with other sections and the clauses of other sections covering other wrongful using. The prosecution must remain with this section (903) stand or fall with it.

We are convinced that the indictment does charge the defendant with having committed one of the specific acts in that section, and that the clauses of the section apply to the embezzlement charged.

In leaving this ground, we will state that if it be as defendant contends, that the fraudulent intent is not an essential element under section 903, it surely, none the less, sets out an offense and leaves defendant here without ground of complaint.

But the word "embezzlement" of the section in question conveys the idea of fraudulent intent.

There is a definition in State v. Eames, 39 La.Ann. 986, 3 So. 93, which corresponds with the views herein expressed that the word "embezzle" is sufficient to cover the conversion to one's own use.

See, also, on the same subject, Bishop, Directions and Forms (2d Ed.) 403, 407.

Another objection of defendant is that the word "embezzle" is not used singly in the indictment; that it is stated in the indictment, "and otherwise embezzle." "Otherwise" is used as a prefix.

Let us pause here a moment and consider this objection just as presented by the defense. The indictment reads, "that the defendant did wrongfully use, dispose of, or conceal and otherwise embezzle."

It is said on the part of the defense that the two words cannot be separated, and that, in consequence, the case of defendant is prejudiced.

The full meaning of the word "embezzle" none the less remains; "otherwise" does not detract from the force of the word "embezzle." In law, "otherwise" follows particular clauses, and may perhaps include other classes of offenses than those previously mentioned in some clauses.

With that meaning we are not concerned. We think here it refers to the previously enumerated clauses in the indictment. We are quite certain that the word "otherwise" does not have the effect of neutralizing or excluding the first enumerated clauses of the indictment.

The clauses under which the indictment was framed are distinct and clear. There was no attempt made to cumulate the offenses, as was done in the decision cited supra (32 La.Ann. 565), with those denounced in another section. A plain, distinct offense is stated. There is nothing left in doubt as relates to statute or indictment.

The learned counsel for defendant argues that the trial judge, in refusing to declare the indictment null and void, failed to appreciate the distinction which should be made between section 903 and section 905. The further contention is...