State v. Hudson

• Decision Date: 27 March 1923
• Docket Number: 4611.
• Parties: STATE v. HUDSON.
• Court: West Virginia Supreme Court

117 S.E. 122

93 W.Va. 435

STATE v. HUDSON.

No. 4611.

Supreme Court of Appeals of West Virginia.

March 27, 1923

submitted March 13, 1923.

Syllabus by the Court.

Under section 81a-XVII, c. 21, Acts 1913 (Hogg's Code 1913, c 54, serial section 3068), the word "embezzle" includes in its meaning a conversion or appropriation to the embezzler's own use; therefore the use of the word "embezzle" in an indictment under the statute contains within itself the charge that the defendant converted the property to his own use.

An indictment for embezzlement under that section, which charges that the defendant (1) feloniously did embezzle (2) certain moneys, stating the amount, (3) belonging to a designated state bank, (4) which moneys then and there were in defendant's possession, (5) by virtue of his office of cashier of said bank, (6) with intent to injure and defraud the bank, against the peace and dignity of the state contains all the elements essential to a valid indictment for the embezzlement of the moneys of the bank under the statute.

But an indictment for embezzlement of the funds and credits of a state bank under the statute should describe the funds and credits so embezzled, or show a proper excuse for lack of such description.

Under that section, which makes it a criminal offense for any officer or agent of a state bank to embezzle, abstract, or willfully misapply "any of the money, funds, or credits of the institution," the word "moneys" refers to the currency or circulating medium of the country; the word "funds" refers to government, state, county municipal, or other bonds and to other forms of obligations and securities in which investments may be made; and the word "credits" refers to notes and bills payable to the bank and to other forms of direct promises to pay money to it.

An indictment under section 81a-XVII, c. 21, Acts 1913 (Code 1913, c. 54, § 3068), which charges the embezzlement abstraction, and willful misapplication of the moneys, funds, and credits of a state bank by defendant, as its cashier, with intent to injure and defraud the bank, stating a definite sum of money, but without setting forth any particular description or amount of the funds and credits, so embezzled, abstracted, or misapplied, is a valid indictment for the embezzlement of the moneys of the bank; but is insufficient as an indictment for embezzlement of the funds and credits of the bank; and is wholly insufficient as an indictment for the abstraction or willful misapplication of either the moneys, funds, or credits of the bank, because it fails to set forth the separate amounts of funds and credits and to aver how the abstraction or misapplication was made.

An indictment under such statute, charging an officer of a state bank with the abstraction or willful misapplication of the moneys, funds, and credits of the bank, must state separately the amounts of money, funds, and credits and a particular description of the funds and credits so abstracted or misapplied, and by proper averments set forth how the abstraction or willful misapplication was made and the facts from which the court can see that the act was unlawful.

Under section 81a-XVII, c. 21, Acts 1913 (Code 1913, c. 54, § 3068), embezzlement, abstraction, and willful misapplication of the moneys, funds, and credits of a bank by an officer or agent thereof, with intent to injure or defraud the bank or others, constitute three separate offenses; and while, under our system of pleading, the three offenses may be joined in a single count in the same indictment, yet upon a trial thereof, at the close of the state's evidence tending to show the commission of two or more of the offenses charged, the defendant has the right to require the state to elect upon which charge it will stand for conviction, and it is error to overrule his motion so made.

While under the statute the three offenses, embezzlement, abstraction, and willful misapplication may be joined in the same count in an indictment, yet the defendant, upon a trial thereof, can be convicted of but one of the offenses charged; and in such case it is error to instruct the jury that the jury may convict of all three offenses.

Upon a trial under the statute for embezzlement of the moneys of a state bank, to support a conviction the evidence must show that the defendant embezzled moneys; a showing that he embezzled funds or credits of the bank is not sufficient to support a conviction for embezzlement of moneys. The allegation and proof must correspond.

Error to Circuit Court, Greenbrier County.

J. F. Hudson was convicted of an offense against the state banking laws, and he brings error. Reversed and remanded.

T. C. Townsend, of Charleston, for plaintiff in error.

E. T. England, Atty. Gen., R. A. Blessing, Asst. Atty. Gen., D. L. Salisbury and Lon H. Kelly, both of Charleston, for the State.

MEREDITH, J.

Defendant was convicted of an offense against the state banking laws and relies for reversal mainly on the following grounds: (1) Overruling the demurrer to the indictment. (2) Refusal to require the state, at the conclusion of its evidence, to elect on which charge it would stand for conviction. (3) Giving of improper instructions to the jury at the instance of the state. (4) Refusing to set aside the verdict and grant him a new trial, because of insufficient evidence to support the verdict.

Other errors are assigned, but we deem those stated controlling, and we have rearranged the order of their assignment in the record so as to discuss them in an orderly way. There are two counts to the indictment. The court overruled defendant's demurrer and motion to quash. On his motion to require the state to elect on which count it would try him, the state elected to try him on the second count. However both counts are substantially the same. The count upon which he was tried reads:

"And the jurors aforesaid, upon their oaths aforesaid do further present that the said J. F. Hudson, afterwards, to wit, on the * * * day of December, 1916, and the said county of Kanawha, did feloniously embezzle, abstract, and willfully misplace money, funds, and credits, the property of and belonging to the 'Day & Night Bank of Charleston,' a corporation, to wit: nine hundred and twenty-nine dollars and eighty-seven cents, good and lawful money of the United States of America of the value of $929.87, with the intent then and there the said the 'Day & Night Bank of Charleston' a corporation, to injure and defraud; he the said J. F. Hudson, having then and there in his possession such money, funds, and credits by virtue of a certain office, place, and employment, which he, the said J. F. Hudson, then and there held and occupied, to wit, cashier of the said the 'Day & Night Bank of Charleston,' a corporation, said 'Day & Night Bank of Charleston,' a corporation, then and there being a bank of issue and of discount and of deposit, organized and doing business and formed under the laws of West Virginia, against the peace and dignity of the state."

The indictment is based on section 81a-XVII, c. 21, Acts 1913 (Hogg's Code, 1913, c. 54, serial section 3068), which reads as follows:

"Every president, director, cashier, teller, clerk or agent of any institution mentioned in this act who embezzles, abstracts or willfully misplaces any of the money, funds or credits of the institution, or who, without authority from the directors, issues or puts in circulation any of the notes of any bank or other institution, or who, without such authority, issues or puts forth any certificates of deposits, draws any order or bill of exchange, makes any acceptance, assigns any note, bond, draft, bill of exchange, mortgage, judgment or decree of any bank or other institution mentioned in this act, with intent in either case to injure or defraud the bank or other institution or any other company, body politic or corporate, or any individual person, or to deceive any officer of any bank or other institution or any agent appointed to examine the affairs of such bank or other institution, and every person who, with like intent, in any way aids or abets any officer, clerk or agent in the violation of this section, shall be deemed guilty of a felony, and on conviction thereof shall be imprisoned in the penitentiary not less than five nor more than ten years."

This section was amended (chapter 11, Acts 1917), substituting the word "misapplies" for the word "misplaces." Barnes' Code, 1923, § 81a17, c 54. The prosecution is under the original statute, but, as suggested by counsel in argument, for the purpose of this discussion we assume, though we do not decide, that the two words have the same meaning. Our statute was modeled after the federal statute governing national banks, and the amendment was doubtless adopted to make the statute conform to the federal statute. The two statutes are substantially similar. This is the first time our statute has been brought under consideration by this court, so, in construing it, we are justified in paying great respect to the decisions of the federal courts in construing the federal statute. Defendant insists that the count upon which he was tried is defective, that it fails to charge in apt language the commission of any offense, because it fails to state that he converted any of the moneys, funds, and credits of the bank to his own use. The Attorney General argues that a charge that he embezzled carries with it the charge of conversion, that the word "embezzle" as used in the statute includes in its meaning a conversion to the embezzler's own use, and therefore where it is charged that the defendant "did embezzle" certain property it is charged that he "converted it to his own use," and cites us to State v....