State v. Fricker

• Decision Date: 01 April 1893
• Docket Number: 11,234
• Citation: 12 So. 755,45 La.Ann. 646
• Court: Louisiana Supreme Court
• Parties: THE STATE OF LOUISIANA v. BENJAMIN FRICKER

12 So. 755

45 La.Ann. 646

THE STATE OF LOUISIANA v. BENJAMIN FRICKER

No. 11,234

Supreme Court of Louisiana

April 1, 1893

APPEAL from the Criminal District Court, Parish of Orleans. Moise, J.

M. J Cunningham, Attorney General, and Lionel Adams, Assistant District Attorney, for the State, Appellee.

A. D Henriques, for Defendant and Appellant.

OPINION

FENNER, J.

The defendant was tried and convicted, on an information, of the crime of embezzlement under the following statute, omitting words not pertinent:

"Any agent * * * who shall wrongfully use, dispose of conceal or otherwise embezzle any money, * * * which he shall have received * * * for his principal, * * * or by virtue of his * * * trust or employment, or which shall have been entrusted to his care, keeping or possession by another, or by his principal, * * * upon conviction thereof, or of having been an accessory thereto, before or after the fact, shall suffer imprisonment at hard labor not exceeding seven years." Act 31 of 1888, amending Sec. 905, Revised Statutes.

The information charged the offence as follows:

That the defendant, "being then agent to Louis Dumser, did by virtue of such employment, then and whilst he was so employed as aforesaid, receive and take into his possession certain money, to-wit: the sum of $ 3.60, for and in the name and on the account of the said Louis Dumser, his principal as aforesaid, and did then fraudulently and feloniously wrongfully use, dispose of, conceal and otherwise embezzle the said money; contrary to the form of the statute of the State of Louisiana in such case made and provided, and against the peace and dignity of the same."

After conviction the defendant filed a motion in arrest of judgment on the following grounds:

"That the information herein is deficient in matters of substance, and does not allege the ownership of the money claimed to have been embezzled.

"That the information is fatally defective in not alleging the ownership of the money claimed to have been embezzled with the same accuracy and after the same rules as in an information for larceny."

The motion in arrest was overruled, the defendant was sentenced and prosecutes the present appeal, which presents no other question than this motion.

His learned counsel quotes numerous and incontestable authorities from courts and text writers, holding that, under the English and American statutes generally, it is essential to the validity of an indictment or information for embezzlement that it should allege the ownership of the money or thing embezzled, with the same certainty and precision as is required in an indictment for larceny.

The English statutes on this subject, 39 George III, 7 and 8 George IV, and 24 and 25 Victoria, all declare, after defining the acts constituting embezzlement, that the person guilty of such acts "shall be deemed to have feloniously stolen the same from his master or employer," etc.; and we have the authority of Mr. Bishop for saying that "this is the more common form of the enactment, not only in England, but in this country generally." 2 Bish. Cr. L., Sec. 327.

This special clause of the statutes has been the basis of all the adjudications requiring indictments based thereon to contain the material averments necessary in larceny.

In the leading case of Rex vs. McGregor, reported in 2 Leach's Crown Cases, p. 932, we find reproduced the arguments of counsel, which turned wholly on the question whether the statute constituted the facts making up embezzlement into a distinct felony eo nomine, or only refers those facts to a class of felonies, the properties of which are known to the common law as larceny. The judges, speaking through Mr. Baron Thompson, gave the following opinion:

"The objection in this case, on the part of the prisoner, was that as the statute 39 Geo. III c. 85 has not made the species of embezzlement therein mentioned eo nomine a distinct and substantive felony, but only had enacted that the property received into the possession of the servant, and feloniously converted by him, shall be considered as having been by such conversion feloniously taken from the possession of the master, the offence still continues a common law larceny, and consequently, that an indictment framed upon this statute must contain all the requisites of an indictment for larceny at common law. And, as in the present indictment, the money alleged to have been stolen is not expressly averred to have been the money of any person whatever, a majority of the judges are of opinion that the objection is well founded, and consequently that the judgment in this case must be arrested."

The inference is irresistible that, but for the clause referred to, the conclusion would have been different, and an indictment setting forth the facts in the language of the statute would have been sufficient.

This is rendered more clear by the fact that one section of the statute 7 and 8 Geo. IV, Sec. 49, in defining embezzlement by bankers, omits this clause, and enacts that "if any money, etc., shall be entrusted to any banker, etc., with any direction in writing to apply said money or any part thereof, or etc., for any purpose specified in such direction, and he shall, in violation of good faith, and contrary to the purpose so specified, in anywise convert to his own use or benefit such money, etc., every such offender shall be guilty of a misdemeanor," etc. Here was a case in which the facts charged made up a substantial offence and were not declared to be a larceny; and when we refer to the form of indictment under this section prescribed by Mr. Archbold, we find it contains no allegation of ownership of the money converted and no other averments appropriate to larceny. 2 Arch. Cr. Pr. and Pl. (7th Ed.), p. 584; 2 Bish. Crim. Proc., Secs. 338, 339.

The rule formulated in Rex vs. McGregor has been followed ever since by English and American courts as applied to statutes which characterize the acts of embezzlement as a "felonous stealing," but even as thus applied, it has not escaped...