State v. Finnegean

• Decision Date: 10 April 1905
• Citation: 127 Iowa 286,103 N.W. 155
• Parties: STATE v. FINNEGEAN.
• Court: Iowa Supreme Court

127 Iowa 286

103 N.W. 155

STATE

v.FINNEGEAN.

Supreme Court of Iowa.

April 10, 1905.

Appeal from District Court, Cerro Gordo County; J. F. Clyde, Judge.

The indictment accused the defendant of having committed the crime of larceny, and was in two counts, the first of which charged that he “did, on the day stated, embezzle and convert to his own use certain money, the same being lawful money of the United States, in the amount and of the value of two hundred and sixty dollars, without the consent of the owner thereof, the said money being then and there the property of one Stephen Mulrooney, and having been delivered to the said Peter Finnegean by the said Stephen Mulrooney without any intention or purpose on the part of the said Stephen Mulrooney of parting with his property in, or his ownership of, the said money.” And the second, that he “did then and there unlawfully, willfully, and feloniously, and by trick and artifice, and with the intention on the part of the said Peter Finnegean to fraudulently convert the same to his own use, obtain from one Stephen Mulrooney certain money, and the said money being lawful money of the United States, in the amount and of the vaule of two hundred and sixty dollars, without the purpose or intent on the part of the said Stephen Mulrooney in parting with his property in, and the ownership of, said money, and he, the said Peter Finnegean, did then and there willfully, fraudulently, unlawfully and feloniously convert to his own use the said money obtained by him as aforesaid from the said Stephen Mulrooney, and so the said Peter Finnegean did then and there, in the manner and form aforesaid, the said money, of the amount and value of two hundred and sixty dollars, the money and property of the said Stephen Mulrooney, feloniously steal, take, and carry away.” The defendant demurred on the ground that the indictment charged two distinct offenses. This was overruled, as was also a motion to require the state to elect upon which count it would proceed. A verdict of guilty was returned, upon which judgment was entered, and defendant appeals. Reversed.Glass, McConlogue & Witwer, for appellant.

Charles W. Mullan, for the State.

LADD, J.

The indictment, in charging larceny by embezzlement in the first count, and by theft in the second, is said to violate the statute providing that “the indictment must charge but one offense, but the particular crime may be charged in different forms to meet the testimony, and, if it may have been committed in different modes and by different means, may allege the modes and means in the alternative.” Its validity then depends on whether larceny and embezzlement are but one offense. Larceny, as defined by statute, is like that at the common law, save in the increased number of articles made the subject of larceny. Sections 4831, 4834, Code. The crime of embezzlement is purely of statutory origin, intended to cover the misappropriation of property not punishable as larceny. Section 4834 of the Code defines embezzlement by a public officer; section 4841, by a bailee; section 4842, by an agent or employé of a corporation, association, or individual; and section 4844, by carrier for hire; and in each the crime is declared to be larceny. But this is a mere conclusion, evidently intended for the purpose of fixing the punishment, for under similar statutes the charge of larceny has been held not to be sustained by proof of embezzlement. By giving a particular offense the same name as that borne by some other distinct and different offense, the Legislature cannot make the two but one, or change the nature of either. 2 Bishop's Crim. Prac. 318; Com. v. Simpson, 9 Metc. (Mass.) 138, in which it was said that “the two offenses of larceny and embezzlement are so far distinct in character that, under an indictment charging merely a larceny, evidence of embezzlement is not sufficient to authorize a conviction.” Fulton v. State, 13 Ark. 168, concluding that “although the party, in the language of statute, ‘shall be deemed to have committed the crime of simple larceny,’ yet it is a larceny of a peculiar character, and must be set forth in its distinctive character.” At the common law both might be included in separate counts of the same indictment, but as distinct offenses growing out of the same transaction, and the jury was required to say in the verdict of which the accused was guilty. Griffith v. State, 36 Ind. 406; Rex v. Johnson, 3 M. & S. 539; State v. Porter, 26 Mo. 201;Murphy v. People, 104 Ill. 528; 1 McClain's Crim. Law, § 656. In the count charging embezzlement, it seems to have been necessary to include the allegation that the property had been stolen, apparently for that the act of Parliament, in creating the offense, designated it as larceny. Com. v. Pratt, 132 Mass. 246;State v. Fricker, 45 La. Ann. 646, 12 South. 755. This did not relieve the pleader, however, from stating the facts constituting embezzlement; and, in the absence of a statute authorizing conviction under indictment for larceny, the courts have generally held that the facts constituting the crime must be stated with such particularity as to identify it under the statute defining embezzlement. Bishop on Stat. Crim. § 422. But in England, as well as in many of the states of this country, legislation has put the bailee in possession in the same attitude as servants having the naked custody of property, and authorized conviction under a charge of larceny. Bishop, State Cr. § 420. But in Texas, where the Constitution confers the right “to demand the nature and cause of the accusation,” such a statute was condemned as an invasion of the fundamental law. Huntsman v. State, 12 Tex. App. 619. See, also, Hall v....