State v. Journey

Citation62 So. 354,105 Miss. 516
Decision Date23 June 1913
Docket Number16,690
CourtUnited States State Supreme Court of Mississippi
PartiesSTATE v. S. K. JOURNEY

APPEAL from the circuit court of Attala county, HON. G. Q. MCLEAN Judge.

S. K Journey was indicted for embezzlement and from a judgment sustaining a demurrer to the indictment the state appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Frank Johnston, assistant attorney-general, for the state.

So far as this general objection is concerned, it is not well taken. The general averments of the indictment are full and clear and explicit and being of this character, they were not subject to any general and comprehensive objection of insufficiency. The indictment apprises the defendant fully of the nature of the charge against him; it shows a trust relation between himself and the company by the bailment of this reel of films; it shows that he got possession of this propetry by virtue of this contract; that he converted, ipso facto, this property to his own use falsely and feloniously. The date of the contract is given; the date of embezzlement is also stated in the declaration. So that, the demurrer to the indictment depends at last upon the soundness of the specific objections that are made to it.

It was not necessary to state in the indictment whether this contract was oral or in writing. That was wholly an immaterial question so far as the offense charged in this indictment is concerned.

So far as no averment in the indictment in respect to a demand being made, none was necessary. Counsel who filed the demurrer has mistaken the character of this indictment which is, for an act of embezzlement, complete in itself and where no demand was necessary. The rule of law on this subject is very simple. There are cases of embezzlement, and a large class of such cases, where the crime is complete by the fact of the embezzlement. Where the party actually secretes, appropriates and embezzles the property, the crime itself is then complete and no demand is necesasry. This constitutes one class all to itself of embezzlement cases.

It is not necessary in the averment to charge what particular four days this defendant had within which to use these films. This was wholly immaterial. He unquestionably, according to the averments of the indictment, had a right to use the films for four days and no longer, but the four-day feature of the contract passes entirely out of consideration in view of the distinct and explicit averment and charge in the indictment that on the twenty-second day of February, 1912, the defendant fraudulently and feloniously embezzled, secreted and converted to his own use one reel of films, No. 3480 which he received on that day. The four-day stipulation in the contract becomes, therefore, a matter of no consequence in view of the fact that he had, in fact, secreted and embezzled and appropriated to his own use the said film. It is absolutely immaterial whether he did this within the four days or after the expiration of the four days. The crime was complete in itself when he, in fact, appropriated this film whether he did so on the day that he received it or did so four days after he received it.

The construction placed on section 1136 of the Code is a very narrow one, and I think, an unsound construction of the law. In the first clause of section 1136 it is made embezzlement for any agent of an incorporated company to embezzle the property of the corporation. While a bailment is not technically an agency yet in a broad sense, a person occupying the position of this defendant is, in a sense, an agent of the corporation. Fairly construed, I submit that section 1136 is not susceptible of the interpretation that a bailee of an incorporated company cannot, under the terms of this section, commit the crime of embezzlement by an appropriation of the property of the incorporated company. There is no reason why the bailee of an incorporated company or the lessee of an incorporated company in possession of the property of the company by virtue of his contract should not be held criminally responsible for an embezzlement of the property of the corporation. The construction that is sought to be placed upon this section is therefore too narrow and too circumscribed, and it rests upon no reason whatever, but I respectfully submit to the court that section 1139 of the Code, amply supplies the deficiency, if there is a deficiency, or a want of completeness, in section 1136.

There was always a question at common law, under the English statutes of embezzlement, as to whether the crime was within the precise terms of the statute or not. The original English statute began with a provision against embezzlement by the servant of a master's goods and was afterwards extended to other trust and fiduciary relations between parties. There was such nicety of distinctions and hairsplitting constructions of the English statutes and also of many of the American statutes, that the Mississippi law (this being purely a matter of statutory regulations) has simplified the whole subject by the broadest and most comprehensive terms in section 1139. This statute applies to private individuals and corporations indiscriminately; it provides that if a person shall fraudulently appropriate personal property or money which has been delivered to him on deposit, or to be carried or repaired, or on any other contract of trust, by which he was bound to deliver or return the thing received, or its proceeds, he shall on conviction be punished for embezzlement.

It is seen at once, therefore, that in this case the indictment brings the averment clearly within the terms of section 1139, since the defendant did receive the property of this company which had been delivered to him on a contract of a trust by which he was bound to return the thing received, and which he did fraudulently appropriate to his own use.

The case comes, therefore, according to the averments of the indictment clearly within the express provisions of section 1139 of the Code. The whole purpose of this statute was comprehensive to embrace any case, not only of a bailment, but of any contract or any trust by which a person acquired the possession of property for which he was bound to account to the owner.

R. H. & J. H. Thompson, for appellee.

We trust that we will be pardoned for suggesting that the construction placed on the statute involved in this case by the opinion delivered on the twenty-third of June, 1913, bears all the indica of a broad and liberal, but none of a strict construction.

The statute itself, needlessly, if the court correctly construed it, separate incorporated companies from private persons. The court makes the statute read as if the legislature had used these words: "If any trustee, factor, carrier, bailee, clerk, agent, servant or officer of any person or corporation," when in truth it carefully enumerates trusted persons who may embezzle from a corporation and separately enumerates those who may embezzle the property of a private person. Why separate enumeration, if they are to be combined? What the legislature should have done is not the question. While your honors are on the bench, all will be well, but no more dangerous doctrine can be conceived that the one, apparently receiving public sanction, recognizing the power of the courts to remedy legislative failures and blunders.

The enumerations of the statutes are as follows:

Those who may embezzle from incorporated companies are director, agent, clerk, servant and officer.

Those who may embezzle from private persons are trustee, factor, carrier, bailee, clerk, agent and servant.

Clerk, agent and servant are enumerated in each case. Director and officer are enumerated as trusted persons who may embezzle from an incorporated company, but are omitted from those who may embezzle from a private person. Trustee, factor, carrier and bailee are enumerated in defining who may embezzle from a private person, but are omitted in the enumeration of those who may embezzle from a corporation. The courts, we respectfully submit, have nothing to do with the inquiry as to why the law-making department of the government made the distinction. Let us suppose that John Brown was indicted as director of Henry A. Wise, a private person, for embezzling the funds of said Wise, would not the indictment be unsupported by the statute? It certainly would and for the reason only that the statute does not use the word director in enumerating those who may embezzle from a private person. Why does not the same reason apply when an indictment charges a trustee, factor, carrier or bailee of an incorporated company? Neither of said terms are used by the legislature in enumerating the persons who may embezzle the property of a corporation, and, so far as the courts are conerned, the result is the same whether the legislature acted upon reasons sufficient to satisfy the lawmakers, or merely failed to make the statute as broad as it should have been made.

We are unable to see what rule of construction authorized the court to consolidate the two clauses of the statute, and regret that the opinion fails to enlighten us on this point. The true meaning of separate sections of a statute is frequently made manifest by combining them in one, and the meaning of a single section can sometimes be reached by separating its parts and reading it as if it had been enacted in two sections.

Lets separate the two clauses and consider them as if written in separate sections: So doing, we have: First: "If any director, agent, clerk, servant, or officer of any incorporated company shall embezzle . . . property which shall have come or been intrusted to his care or possession by virtue of his office, place or employment, ...

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  • Coleman v. State
    • United States
    • United States State Supreme Court of Mississippi
    • December 7, 2006
    ...construction." Id. at 153, at *23. ¶ 17. The dissent tiptoes past Champluvier and cites as binding precedent State v. Journey, 105 Miss. 516, 532, 62 So. 354, 354 (1913), wherein a bailee took money from a corporation and was prosecuted under the Embezzlement Statute. In sustaining the defe......
  • Collins v. State
    • United States
    • Supreme Court of Indiana
    • June 2, 1921
    ...Ga. App. 80, 62 S. E. 641;State v. Hoffman (1907) 134 Iowa, 587, 112 N. W. 103;Commonwealth v. Hussey (1873) 111 Mass. 432;State v. Journey (1913) 105 Miss. 516, 62 South. 354;State v. Millard (1912) 30 S. D. 169, 138 N. W. 366;State v. Mason (1886) 108 Ind. 48, 8 N. E. 716. In a well–consi......
  • Collins v. State
    • United States
    • Supreme Court of Indiana
    • June 2, 1921
    ...... Kelley (1907), 125 Ky. 245, 101 S.W. 315, 15 Ann. Cas. 573; Goodman v. State (1907), 2. Ga.App. 438, 58 S.E. 558; Hagood v. State . (1908), 5 Ga.App. 80, 62 S.E. 641; State v. Hoffman (1907), 134 Iowa 587, 112 N.W. 103;. Commonwealth v. Hussey, supra ; . State v. Journey (1913), 105 Miss. 516, 62. So. 354; State v. Millard (1912), 30 S.D. 169, 138 N.W. 366; State v. Mason, supra. . . .          In a. well considered English case, Pollock, Lord Chief Baron,. says: "It appears to me that this act of parliament was. intended to give the ......
  • Coleman v. State
    • United States
    • Court of Appeals of Mississippi
    • November 1, 2005
    ...Coleman's motion for a directed verdict. The trial court, while admitting that it's decision might be wrong, relied on State v. Journey, 105 Miss. 516, 62 So. 354 (1913) as the basis for its ruling. The defendant in Journey had been indicted for embezzling from a corporation. Id. The defend......
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