State v. Monk

• Decision Date: 19 December 1951
• Citation: 238 P.2d 1110,193 Or. 450
• Parties: STATE v. MONK.
• Court: Oregon Supreme Court

Page 1110

238 P.2d 1110

193 Or. 450

STATE v. MONK.

Supreme Court of Oregon.

Decided Dec. 19, 1951.

Argued Nov. 28, 1951.

H. R. Winston, Roseburg (Winston & Dimick, of Roseburg, on the brief), for appellant.

Robert G. Davis, Dist. Atty. and Donald S. Kelley, Deputy Dist. Atty., of Roseburg, for respondent.

Before BRAND, C. J., and HAY, LUSK, LATOURETTE and TOOZE, JJ.

TOOZE, Justice.

Defendant was indicted by the grand jury of Douglas county for the crime of larceny by embezzlement. He was convicted of having embezzled the sum of $257.25 belonging to Patrick Kelly Post of the Veterans of Foreign Wars and sentenced to imprisonment in the state penitentiary for an indeterminate period not exceeding three years. From the judgment he appeals to this court.

Defendant assigns three alleged errors: (1) that the indictment fails to state facts sufficient to constitute a crime, that contention being made for the first time in this court; (2) the denial of his motion for an order instructing the jury to return a verdict of not guilty; and (3) the giving of an alleged erroneous instruction by the court to the jury. We shall consider these several assignments of error in the order in which they are stated.

Omitting formal parts, the indictment charges as follows:

'Frank Monk is accused by the Grand Jury for the County of Douglas, State of Oregon, by this Indictment of the crime of Larceny by Embezzlement committed as follows:

'The said Frank Monk on the 16th day of January A. D. 1951, in the said County of Douglas and State of Oregon, then and there being, and then and there being an employee of the Patrick Kelly Post of the Veterans of Foreign Wars located at 115 West Washington Street in the city of Roseburg, County and State aforesaid, there did then and there come into his possession and be under his care by virtue of his employment diverse gold and silver coins, paper currency, bank bills and currency bills, lawful money of the United States of America, checks, etc., to the amount of Two Hundred Fifty-seven and 25/100ths Dollars ($257.25), all being the property of the said Patrick Kelly Post of the Veterans of Foreign Wars, the said Frank Monk then and there so having in his possession and under his care as such employee, did then and there unlawfully and feloniously embezzle and fraudulently convert the same to his own use * * *.'

Defendant's sole contention respecting the sufficiency of the indictment rests upon its failure to allege the status of Patrick Kelly Post of the Veterans of Foreign Wars.

The indictment is based upon § 23-523, O.C.L.A. the material portion of which reads as follows: 'If any officer, agent, clerk, employee, or servant of any person, co-partnership, or corporation, shall embezzle or fraudulently convert to his own use * * * any money, property, or thing belonging wholly or in part to such person, co-partnership, or corporation, which may be the subject of larceny, and which shall have come into his possession, or be under his care by virtue of such employment, such officer, agent, clerk, employee, or servant, whether he has, or has not any interest, divisible or indivisible, in such money, property, or thing, shall be deemed guilty of larceny, and * * * punished accordingly * * *.'

As defendant points out in his brief, the indictment fails to allege that Patrick Kelly Post of the Veterans of Foreign Wars is a copartnership or a corporation. There is nothing in the name of the Post as alleged that suggests its status. It might be a corporation, or it might be an unincorporated association, society, or club.

Before one may be indicted under this particular statute, it is essential that he belong to the class of persons amenable to that law. He must either be an 'agent, clerk, employee, or servant' of a natural person, or of a copartnership or an 'officer, agent, clerk, employee, or servant' of a corporation. His status in this respect should be made to appear in the indictment. Also, it is important that the indictment show on its face that the alleged owner of the property involved is a legal entity capable of owning property.

We quote the following from 29 C.J.S., Embezzlement, § 31b(1) and (2), page 713:

'(1) In General

* * *

* * *

'It has been held that, where the owner of the embezzled property is an association, partnership, corporation, or other firm or organization, there must be allegations showing such organization to be a legal entity capable of owning property as such or the individuals comprising the same and owning the property should be set out as owners. * * *

'(2) Corporation

* * *

* * *

'In a prosecution for embezzlement from a corporation, the indictment or information should allege its incorporation and give its corporate name as fixed by law, although, if the injured corporation be known by one name as well as by another, it may be designated by either in the pleading. * * *'

The reason given for this rule is that there should be sufficient particularity and certainty in an indictment, in a matter of substance, to enable the defendant to prepare for his defense and to plead his acquittal or conviction successfully, should he be again indicted for the same offense. 27 Am.Jur., Indictments and Informations, 651, § 89.

In People v. Cohen, 352, Ill. 380, 185 N.E. 608, 609, 88 A.L.R. 481, defendant was indicted for larceny and for receiving stolen property, knowing it to have been stolen. The property stolen was alleged to be owned by the Pullman Company, a corporation. Defendant was convicted of receiving stolen property as alleged in the indictment. Though the indictment alleged that the Pullman Company was a corporation, yet, on the trial there was no proof to that effect. The Illinois court said: 'It has been the settled law of this state, since this court was first organized, that every material allegation in an indictment for a felony must be proved beyond a reasonable doubt before a defendant charged with such a crime can be legally convicted for the same. One of the material allegations of the indictment in this case is that the Pullman Company, the owner of the property alleged to have been stolen, was a corporation.' (Italics ours.)

To this case, as reported in 88 A.L.R., commencing at page 485, there is appended an exhaustive note in which the question now under consideration is thoroughly discussed. As pointed out in that note, one line of authorities holds to the proposition that, in a prosecution for larceny or embezzlement, it is necessary to allege that the owner of the property, if not a natural person, is a corporation or otherwise a legal entity capable of owning property. Other authorities are cited where the foregoing rule has been relaxed to some extent. In these latter cases it is held that, where the name of the company imports an association or a corporation, it is not necessary specifically to allege that it is such. However, under either rule as stated, the indictment in the instant case is defective. The fact of incorporation is not alleged; neither does the name of the alleged owner import an association or a corporation capable of owning property. However, we believe the better rule to be that requiring an allegation in the indictment relative to the status of the alleged owner of the property embezzled.

The indictment in this case is defective and was subject to a demurrer 'That the facts stated do not constitute a crime.' § 26-832, O.C.L.A.

We are not unmindful of what this court said in State v. Adler, 71 Or. 70, 74, 142 P 344, 346, viz.: 'When the ownership of the goods is laid in a corporation, the corporate name must be given, but the fact of incorporation need not be alleged, at least if the name imports incorporation.'

The assertion that 'the fact of incorporation need not be alleged' must be read and considered in conjunction with the further statement 'if the name imports incorporation.' Moreover, the entire statement is dicta, for in that case it was alleged in the indictment that the owner of the property was a corporation. Furthermore, the charge in that case was for receiving and buying stolen property, not for embezzlement.

It will be remembered that the sufficiency of this indictment was not challenged in the trial court by demurrer, or otherwise. The first attack thereon came in this court. It is true, as defendant contends, the indictment can at any stage of the proceedings--even here for the first time on appeal--be challenged on the ground that it does not state facts sufficient to constitute a crime, but courts do not look with favor upon such delay in the attack. As this court stated in State v. Du Bois, 175 Or. 341, 345, 153 P.2d 521, 522: 'When a general demurrer is interposed, the indictment is construed strictly against the pleader, but in the absence thereof, it is entitled to a more liberal construction.'

The defendant pleaded not guilty and went to trial upon this indictment. On the trial, evidence was offered and admitted without objection that Patrick Kelly Post of the Veterans of Foreign Wars is a corporation. Defendant is a member of that Post.

Though the indictment is defective in the respects noted, nevertheless, it is not fatally defective. It is merely a defective statement of the offense charged. The defect was cured by the verdict. In 42 C.J.S., Indictments and Informations, § 319, page 1348, appears the following: 'In general, a defective statement of the offense is aided or cured by verdict, but not a statement of a defective cause. After verdict, it is only a failure to allege, even imperfectly, any crime known to the law that can be raised. It has been variously stated that an indictment or information will not be held had after verdict unless it fails in some essential averment necessary in the description of the crime, or unless the indictment is void, charges no offense, and is wholly insufficient to intercept the running of the statute of limitations * *...