State v. Fraley

Decision Date15 October 1912
Citation76 S.E. 134,71 W.Va. 100
CourtWest Virginia Supreme Court

Submitted September 6, 1912.

Syllabus by the Court.

A check on a bank is the subject of embezzlement under section 19 chapter 145, Code 1906.

"One check of the value of forty-two and 50/100 ($42.50) dollars," in an indictment under said section 19 chapter 145, Code 1906, sufficiently describes a check charged to have been embezzled.

The agency of one charged with the embezzlement of money or other property, under said section 19, chapter 145, Code 1906, is sufficiently established, by evidence showing that the agency related to but the single transaction of intrusting the property embezzled to the defendant; no previous relationship of principal and agent is necessary.

The "agency" thus established is within the statute on embezzlement, whether the contract of agency provides for compensation or not (citing Words and Phrases, vol. 1, p 262).

Although the property (a check in this case) may have been voluntarily turned over to the defendant by his principal, for collection, he is guilty of embezzling it, if in obtaining possession thereof and before collecting it, he used fraud or deception in getting it, and had conceived the guilty intention of misappropriating it, or the proceeds thereof, and actually did so.

(Additional Syllabus by Editorial Staff.)

A "check" is a bill of exchange, sometimes defined as an inland bill of exchange, and is "property"; it being capable of beneficial ownership. Citing Words and Phrases, vol. 2, p. 1109.

Error to Circuit Court, Cabell County.

Martin Fraley was convicted of embezzlement, and brings error. Affirmed.

R. L. Blackwood, of Huntington, for plaintiff in error.

Wm. G. Conley, Atty. Gen., for the State.


On an indictment, in three counts, for embezzlement, the first two based on section 19, chapter 145, Code, the third a common count for larceny, defendant was found guilty, as charged in the indictment, of the embezzlement of "one check of the value of forty-two and 50/100 ($42.50) dollars," which the indictment in each count charges to have been the property of one Johnson McClure. And the judgment of the criminal court, on the verdict, affirmed by the circuit court, was that defendant be confined in the penitentiary for the period of two years.

Of the errors assigned here, the first is that the demurrer to the indictment, going to each count, should have been sustained. The ground of demurrer is, that a check, which at common law was not the subject of larceny, is not covered, in specific terms at least, by the statute.

It is true that a "check" is not, as in Virginia, specifically covered by our statute, and the question is, does it fall within any of the words of general description contained therein? The statute, among others, contains the general words, "security for money," and "any effects or property of any other person." The general rule is that penal statutes should be strictly construed. However, Mr. Bishop, 2 Bishop's New Criminal Law, section 357a, of his chapter on embezzlement, says: "Property--is a word quite flexible in meaning, and it is very broad in some connections. A statute making indictable the embezzlement of 'any money or property of another' includes promissory notes, bills of exchange, and other 'property' of the like sort; such, for example, as shares of stock." A check is a bill of exchange, sometimes defined, an inland bill of exchange. Cox v. Boone, 8 W. Va. 506, 23 Am.Rep. 627; Purcell v. Allemong, 22 Grat. (Va.) 739; 2 Ency. Dig. Va. & W.Va. Rep. 406; 2 Words & Phrases, 1109. Our case of Harvey Coal & Coke Co. v. Tax Commissioner, 59 W.Va. 605, 609, 53 S.E. 928, 937 (6 L.R.A. [N. S.] 628), says: "Anything capable of beneficial ownership is property." A check is certainly capable of such ownership. Before our present negotiable instruments law, section 189, chapter 81, Acts 1907 (Code Supp. 1909, c. 99, § 8a189), a check was held to constitute an equitable assignment pro tanto, of the funds in bank on which it is drawn. Hulings v. Hulings Lumber Co., 38 W.Va. 351, 18 S.E. 620. And now, except as otherwise provided, the usual rights pertaining to a bill of exchange apply. Section 185, chapter 81, Acts 1907 (Code Supp. 1909, c. 99, § 8a185). These authorities would seem to settle the question in favor of the sufficiency of the indictment.

Another point arising on the demurrer, but not presented by counsel, and which occurred to us in council, was that the check was probably not sufficiently described in the indictment to identify it and give the defendant notice; but when applied to the statutory offense of embezzlement the point seems to be without merit. Whalen v. Com., 90 Va. 544, 19 S.E. 182; 25 Cyc. 77; Com. v. Brettun, 100 Mass. 206, 97 Am.Rep. 95; People v. Lovejoy, 37 A.D. 52, 55 N.Y.S. 543.

On the merits, the first point of error, raised by defendant's motion to set aside the verdict of the jury and award him a new trial, is that there is no proof that defendant was an agent of McClure, within the meaning of the statute. The statute provides that "If any *** agent, clerk or servant of any firm or person, or company or association of persons not incorporated, embezzle or fraudulently convert to his own use, bullion, money, bank notes, security for money, or any effects or property of any other person, which shall have come into his possession, or been placed under his care or management, by virtue of his office, place or employment, he shall be guilty of larceny thereof." The proof is, not that defendant at the time the check in question was delivered to him by McClure was in some general employment of McClure, and by virtue of such agency, the check was turned over to him for collection, but that the agency covered the single transaction of intrusting the check to Fraley, for collection and accounting to McClure for the proceeds. Is such an agency covered by the statute? We think it is. At one time it was thought the employment should extend beyond one transaction. Now, says Mr. Bishop, 2 Bishop, New Cr. Law, section 346, the doctrine is "settled that the employment need not extend beyond the one transaction." We think this the proper interpretation of our statute.

It is argued, however, that as our case of State v. Moyer, 58 W.Va. 149, 52 S.E. 30, and other cases cited, hold the statute on embezzlement to have been enacted for the purpose of supplying what were regarded defects in the common law of larceny, and that in order to constitute the offense (embezzlement) "it is necessary that the property embezzled should come lawfully into the hands of the party embezzling, and by virtue of the position of trust he occupies to the person whose property he takes" we have given our statute a construction different from that stated by Mr. Bishop, and have said, in effect, that the trust relation must have been previously established and not one arising out of a single transaction, and therefore that the case at bar is not within the statute. The language of the Court must be considered in connection with the facts in the case before it. In that case the agency had existed for some time prior to the time of the offense charged against him. The Court did not say, nor intend to intimate, that an agency covered by the statute could not relate to a single transaction. We have decided with respect to attorney and client that the relationship begins as soon as the client has expressed a desire to employ the attorney and the latter has given his consent to act in that capacity. Keenan v....

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