State v. Flournoy

Decision Date01 December 1894
Docket Number11,629
Citation16 So. 454,46 La.Ann. 1518
CourtLouisiana Supreme Court
PartiesSTATE OF LOUISIANA v. LEM FLOURNOY

APPEAL from the First District Court, Parish of Caddo. Taylor J.

M. J Cunningham, Attorney General, and John R. Land, District Attorney, for Plaintiff, Appellant.

Defendant Appellee, unrepresented by counsel on appeal.

OPINION

WATKINS, J.

The defendant was indicted under Sec. 905 of the Revised Statutes denouncing the crime of embezzlement against an agent, clerk, trustee, mandatary, depositary, etc.

To the indictment the defendant's counsel filed a motion to quash on the ground that same "is not sufficient in law;" and the motion having been sustained and the indictment quashed, the State has appealed.

Was the indictment sufficient in law?

The phraseology of the indictment is as follows, viz.:

"That Lem Flournoy, being then and there depositary of J. Thomas, did then and there, by virtue of his said trust, have, receive and take into his possession one cow, of the value of twenty-five dollars in United States currency, of the property, goods and chattels of the said J. Thomas, the said Lem Flournoy's said depositor, and the said Lem Flournoy, depositary as aforesaid, the said cow, then and there feloniously and wrongfully did embezzle, use, and dispose of, contrary," etc.

The trial judge assigned the following reasons for sustaining the motion and quashing the indictment, to-wit:

"Because the indictment failed to allege that a demand had been made for the return of the property alleged to have been embezzled. Although it does not say so explicitly, in the case of the embezzlement of private property (which was the case here) it would seem that the mere failure to pay should not be sufficient to convict.

"There should, in such a case, be shown a demand as an essential ingredient for conviction, from which a wrongful or felonious appropriation could be inferred. The failure to pay without proof of such demand, that is of itself, would not therefore be sufficient to convict.

"This quotation is taken from State vs. O'Kean, 35 An. 901, in which it was held that before the offence of embezzlement can be made out, it must appear that a demand for the property embezzled was made; and whatever is essential to be proved, it is essential to allege.

"See Desty Criminal Law, Sec. 146; 2 Bishop Criminal Law, Sec. 37."

The counsel for the State insists that the principle quoted by the trial judge from the O'Kean case relates to the quantum of evidence sufficient to convict, and not to the adequacy of averment in the indictment charging the embezzlement; and that the question in that case arose with respect to the charge of the judge, and not with respect to a motion to quash the indictment.

An examination of the O'Kean case discloses that language quoted by the trial judge from our opinion is found under the head styled "the third ground of complaint," which was "that the judge (had) refused to charge the jury that the failure of the accused to pay over the money, if unexplained, does not of itself raise a presumption of a felonious appropriation sufficient to convict."

And it further appears from our opinion that the requested charge ought to have been given by the trial judge, though it was not -- citing the authorities -- and we said: "Decreeing that the charge included in the third bill should have been given, we must remand the case."

It is clear, therefore, that the expression of the court selected from that case was in reference to the charge of the judge to the jury, and not to a motion to quash the indictment.

Not only is such the case, but the opinion furnishes still further proof of the inapplicability of the principle announced to the sufficiency of an indictment for embezzlement, in that upon the examination of the second bill of exceptions it stated "that the judge refused to instruct the jury: 'That the information charges that the money was embezzled as a clerk, and the evidence establishes the fact that the prisoner was a solicitor and salesman. Upon such showing and under such circumstances, the prisoner should be acquitted of the charge as laid in the indictment.' This charge implied the expression of a knowledge of the facts and required a comment upon the evidence. It appertained exclusively to the jury to ascertain and determine whether or not the accused * * * was in the employ," etc.

From the foregoing it seems that the defendant was simply indicted for embezzlement as a clerk, and while not passing on the question of the sufficiency of the...

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