State v. Fournier

• Decision Date: 02 May 1892
• Citation: 29 P. 824,12 Mont. 235
• Parties: STATE v. FOURNIER.
• Court: Montana Supreme Court

29 P. 824

12 Mont. 235

STATE v. FOURNIER.

Supreme Court of Montana

May 2, 1892

Appeal from district court, Deer Lodge county; DAVID M. DURFEE Judge.

Information against Henry Fournier, charging him with embezzlement. A demurrer to the information was sustained, and the state appeals. Reversed.

Henri J. Haskell, Atty. Gen., and W. S. Shaw, Co. Atty., for the State.

Theodore Brantley, for respondent.

BLAKE C.J.

The information charges that Fournier on the 20th day of September, 1891, at the county of Deer Lodge and state of Montana, and for a long time prior thereto, to wit, from the 24th day of August, 1891, to the said 20th day of September 1891, was then and there in the employment of one Frank Boucher, to wit, as an agent and servant of the said Frank Boucher, and as such agent and servant was then and there in the service of the said Frank Boucher. That at said times, as such agent and servant, and while in the service of the said Frank Boucher, as aforesaid, and while in such employment the said Henry Fournier did then and there receive and take into his possession a large sum of money of the said Frank Boucher, to wit, the sum of five hundred dollars, and for and in the name and on the account of the said Frank Boucher. That the said defendant, Henry Fournier, then and there being, and then and there being in the service and employment of the said Frank Boucher, aforesaid, and then and there having received as aforesaid, and having in his care, custody, and control, the said money of the said Frank Boucher, as aforesaid, did then and there, unlawfully and feloniously, embezzle five hundred dollars of the said money, of the value of five hundred dollars, of the goods, chattels, and personal property of the said Frank Boucher, with the intent then and there to steal the same and convert the same to his own use." To this information Fournier demurred on the ground that the same did not state facts sufficient to constitute a public offense. The demurrer was sustained by the court, and this question of law was reserved by the attorney for the state. The information is based upon the following statute: "If any clerk, apprentice, servant, agent, or any other persons, whether bound or hired upon commission, percentage, salary, or otherwise, who shall have received or been intrusted with any money, goods, chattels, or other property, from or by his master, principal, or employer, shall withdraw himself from his master, principal, or employer, and go away with the money, goods, chattels, or other property, or any part thereof, with intent to steal the same and defraud his master, principal, or employer thereof, contrary to the trust and confidence in him reposed by his said master, principal, or employer, or who, being in the service of his said master or employer, shall embezzle the said money, goods, chattels, or other property, or any part thereof, or otherwise shall convert the same to his own use, with like purpose to steal the same, --every person so offending shall be punished in the manner prescribed by law for feloniously stealing property of the value of the articles so taken, embezzled, or converted." St. 2d Sess. p. 253, § 92.

It is stated by counsel that the court below was governed by the ruling in People v. Bailey, 23 Cal. 577. Mr. Justice CROCKER delivered the opinion, and said: "Upon examination, it will be found that our statute differs in a very important particular from the statutes of other states defining the crime of embezzlement. In other states it is generally extended to include all embezzlements or fraudulent conversions of money or property which shall have...