State v. Ives

• Decision Date: 27 March 1911
• Docket Number: 18,666
• Citation: 128 La. 273,54 So. 796
• Court: Louisiana Supreme Court
• Parties: STATE v. IVES

54 So. 796

128 La. 273

STATE v. IVES

No. 18,666

Supreme Court of Louisiana

March 27, 1911

Appeal from Twelfth Judicial District Court, Parish of Sabine; Don E. So Relle, Judge.

A. B Ives was indicted for embezzlement. From an order sustaining a motion to quash the indictment, the State appeals. Affirmed.

Walter Guion, Atty. Gen., James G. Palmer, Dist. Atty. (G. A Gondran, of counsel), for the State.

Pugh &amp Fullilove and Ponder & Fraser, for appellee.

OPINION

BREAUX C.J.

This is an appeal by the state from a ruling of the court sustaining defendant's motion to quash the indictment.

This motion was sustained for the reason that the indictment did not charge that the accused was a servant, clerk, broker, or that he acted in any other capacity.

The alleged illegal indictment charged the defendant with having feloniously converted to his own use and embezzled $ 50 of the property of the receiver of the Pleasant Hill Lumber Company, Limited, drawn from and collected of the Bank of Pleasant Hill, to be used for the --

"purpose, use, and benefit of the creditors and the stockholders of the said Pleasant Hill Lumber Company, Limited, and which money had been intrusted to said A. B. Ives for the said purpose, use, and benefit of creditors and stockholders of the said Pleasant Hill Lumber Company, Limited; that the said money was not used as directed or for the usage, purpose, and benefits aforesaid, but was feloniously converted to his own use and embezzled by him, to the great damage of said creditors and stockholders of the said Pleasant Hill Lumber Company, Limited."

In the motion to quash, sustained by the court as before mentioned, the ground is that the indictment does not charge the fiduciary relation of defendant to the Pleasant Hill Lumber Company, Limited, or to its creditors; nor does it charge that the sum was intrusted to him as agent, servant, clerk, broker, consignee, trustee, attorney, curator, administrator, tutor, or as holding any office of trust.

Section 905 of the Revised Statutes is the section under which the prosecution was instituted. It authorizes the indicting of any servant, clerk, broker, agent, consignee, mandatory, depository, common carrier, bailee, curator, administrator, tutor, or any person holding any office of trust under the executive or judicial authority of the state or in the service of any public or private corporation or company who shall wrongfully use, dispose of, conceal, or otherwise embezzle any money received for another or for his employer, principal, or bailor, or by virtue of his office, trust, or employment.

It is well settled to constitute embezzlement the accused must be occupying a fiduciary relation. It is important, under the section before cited, that the fiduciary relation should be alleged in order that it may appear that a crime has been committed, for it is a condition that an act has been committed by an employe in one of the capacities mentioned in the section.

Mr. Bishop says that, besides the formal part of the indictment, the defendant must stand in a fiduciary relation to another person named within the terms of the statute; that he was the servant, clerk, treasurer, employe in some capacity.

It must further appear that by virtue of such relation the accused received the amount or property for his master or employer, and that he did embezzle the amount in one of the ways denounced by the statute.

Bishop's New Criminal Procedure, p. 317, and "that this and everything else which the particular statute renders material must be stated with fullness in a manner to cover the statutory term and apprise the defendant of what he has to answer to." Section 315.

To constitute embezzlement, the goods or money must be intrusted to the care and control of another.

In People v. Doss, 39 Cal. 431, the court held that, before a person can be convicted, the indictment must allege and the evidence prove that the defendant occupied some subordinate position and fiduciary relation implying special trust and confidence.

In 2 Waterman's Archibold, p. 561, § 10, in the notes of that work, it is stated that in New York an indictment must aver that the defendant was the clerk or servant of an officer or agent of the corporation, and that he received the property by virtue of his employment.

In these notes it is also stated that in Tennessee the defendant was to be charged in effect the same way.

In United States v. Patterson, 6 McLean, 466, Fed. Cas. No. 16,011, the defendant was a person employed in one of the departments of the post office of the United States. The employment was specially charged. There was in this case an equivalent establishing the relation.

In the case before us for decision there was no equivalent.

The learned text-writer above cited says that, to maintain the indictment, the prosecution must prove under the terms of the statute that the accused was clerk or person employed in one of the departments. Id. p. 567, § 449.

In Griffin v. State, 4 Tex.App. 416, the court held that the indictment was fatally defective because it did not allege the fiduciary relation.

In this decision, it was also held that the...