State v. Moyer.

Citation58 W.Va. 146
PartiesState v. Moyer.
Decision Date31 October 1905
CourtSupreme Court of West Virginia
1. Embezzlement.

Embezzlement is a fraudulent appropriation or misapplication of the property of another by one in whose care it has been intrusted, with the intention of depriving the owner thereof, (p. 149.)

2. Embezzlement.

Under section 19, chapter 18, Acts 1903, in order to constitute the crime of embezzlement, it is necessary to show, (1) the trust relation of the person charged, and that be falls within that class of persons named; (2) that the property or thing claimed to have been embezzled or converted is such property as is embraced in the statute; (3) that it is the property of another person; (4) that it came into the possession, or was placed in the care, of the accused, under and by virtue of his office, place or employment; (5) that his manner of dealing with or disposing of the property, constituted a fraudulent conversion and an appropriation of the same to his own use, and (6) that the conversion of the property to his own use was with the intent to deprive the owner thereof, (p. 149.)

3. Embezzlement.

The mere detention of money belonging to another, without a fraudulent intent to deprive that other of his property, does not constitute embezzlement, (p. 149.)

4. Embezzlement Trial Evidence.

On a trial for embezzlement, evidence of the solvency of the defendant, at or immediately prior to the time of the alleged embezzlement, is admissible, (p. 151.)

5. Criminal Law Good Character Evidence.

In a criminal prosecution, evidence of the previous good character of the defendant is always admissible, but it should be confined to the trait of character at issue, (p. 152.)

6. Embezzlement Joint Ownership.

Where, by the terms of the contract under which an agent is employed to collect money on commission, he is required to turn over to his employer the whole amount collected before being entitled to commissions, the agent is not such a joint owner of the fund as will prevent his prosecution and conviction for the embezzlement of the whole sum. (p. 153.)

7. Embezzlement Instructions.

On a trial for embezzlement, it is not error to instruct the jury that if the money, or any portion of the money alleged to have been embezzled, came into the defendant's hands as the agent of and in behalf of his principal, and that he fraudulently converted the said money, or some portion of the same, to his own use, that he would be guilty of the embezzlement thereof, (p. 154.)

8. Embezzlement Evidence.

Under an indictment for embezzlement, it is sufficient for the State to prove the embezzlement of any part of the amount alleged to have been embezzled, (p. 454.)

9. Embezzlement Demand.

In a prosecution for embezzlement, it is not necessary to show a demand for the return of money collected by an agent, and a refusal upon his part to do so, where, by the terms of the contract, the time for an accounting and the payment of the money, is definitely fixed, (p. 155.)

10. Embezzlement Presumptions.

But under our statute, in a prosecution for embezzlement, if it appears that the money or property is unlawfully withheld by the accused from the person entitled thereto, and that he has failed to restore or account for such money, or other property, within thirty days after proper demand has been made therefor, he shall be presumed to be guilty, but such presumption may be rebutted by proof, (p. 155.)

11. Embezzlement Demand.

While such demand may be made for the purpose of creating the presumption of fraudulent conversion against the accused, yet it is not essential when the embezzlement or fraudulent conversion can be otherwise proven, except when, under the peculiar circumstances of the case, a demand should be made. (p. 155.)

12.Embezzlement.

On the trial of a charge of embezzlement, proof that the money alleged to have been embezzled by an agent was received in several sums, at different times, and from different persons, during a course of continuous dealing between such agent and his principal, will support a verdict of the jury, finding the aggregate sum as the amount of a single embezzlement, (p. 157.)

Error to Circuit Court, Fayette County.

William C. Moyer was convicted of embezzlement, and brings error.

Reversed.

Adam Littlepage and J. R. Thrift, for plaintiff in error. Clarke W. May, Attorney General, for the State.

Sanders, Judge:

This case is here on a writ of error to the judgment of the criminal court of Fayette county, convicting the defendant of embezzlement.

We are asked by the Attorney General to dismiss the case, for the reason that application for the writ of error should first have been made to the circuit court, or judge thereof, and upon the refusal of the court or judge to grant the writ, or upon the affirmance of the judgment by the circuit court after granting the same, then application could be made to this Court for such writ. The printed record does not show that the prisoner's application for a writ of error was acted upon by the circuit court, but this is a clerical error, for the original transcript of the record shows that the defendant did present his petition to the judge of the circuit court for such writ, and that it was refused. Therefor, the law in this respect, has been complied with.

The conviction is sought to be upheld under section 19. chapter 18, Acts 1903, amending and re-enacting section 19, chapter 145, of the Code, which provides: "If any officer, agent, clerk or servant * * * of any incorporated bank, or other corporation * * * embezzle or fraudulently convert to his own use, bullion, money, bank notes, security for money, or any effects or property of any other person, which shall have come into his possession or been placed under his care or management, by virtue of his office, place or employment, he shall be guilty of larceny thereof. In the prosecution of any such officer, agent, clerk or servant, charged with such embezzlement, fraudulent conversion or larceny, if it appear that the possession of such bullion, money, bank notes, security for money or other property is unlawfully withheld by such officer, agent, clerk or servant, from the person or persons entitled thereto, and that such officer, agent, clerk or servant has failed or refused to restore or account for such bullion, money, bank notes, security for money or other property, within thirty days after proper demand has been made therefor, such accused officer, agent, clerk or servant shall be presumed to be guilty of such offense; but the accused may rebut such presumption by disproving any such facts or by other competent testimony germane to the issue, upon the trial."

The defendant is charged with having entered into a contract with the Prudential Insurance Company of America, a corporation, to solicit and write life insurance for it, and that he entered upon his employment thereunder as such agent, : tid solicited and received various applications for life insur: nee policies, and collected the premiums therefor, and fraudulently converted the amount thereof to his own use. The defendant admits the employment, and the collection by 1 im of the various sums of money as premiums on said polieies, but claims that he made a true accounting thereof to his employer.

Embezzlement is purely a statutory offense. It was un1 nown to the common law, and the statute was enacted for the purpose of supplying what were regarded as defects in the common law of larceny, so as to reach and punish for the ' raudulent conversion of money or property which could not >e reached by the common law. And while our statute denominates the offense larceny, and concludes by providing 1 hat the person so committing an act of embezzlement shall >e deemed guilty of larceny, yet embezzlement is generally regarded as a separate and distinct crime, and is so treated. The distinction between embezzlement and larceny is that embezzlement is the wrongful conversion of property without trespass, or where the original taking and possession is lawful. In order to constitute the offense, it is necessary that the property embezzled should come lawfully into the hands of the party embezzling, and by virtue of the position of trust he occupies to the person whose property he takes. Under our statute, referred to, it is necessary to show, first, the trust relation of the person charged, and that he falls within that class of persons named; second, that the property oi thing claimed to have been embezzled or converted is such property as is embraced in the statute; third, that it is the property of another person; fourth, that it came into the possession, or was placed in the care, of the accused under and by virtue of his office, place or employment; fifth, that h, s manner of dealing with, or disposing of, the property, censtituted a conversion and appropriation of the same to his own use; and, sixth, that the embezzlement or fraudulent conversion of the property to his own use was with the intent to deprive the owner of his property.

A mere detention of money belonging to another, without a fraudulent intent to convert it to the use of the one by whom it is detained, and to deprive that other person of such p roperty, does not constitute embezzlement. The appropria- tion of money held by an agent is not, under our statute, larceny, unless it be done with the fraudulent intent to deprive the owner of his property, or the use and benefit thereof. The mere fact of the appropriation or use of property may be an innocent exercise of dominion, if the intention exists to repay or restore it. It is the fraudulent intent that constitutes the offense the intention to make an absolute appropriation, as contradistinguished from a temporary use without any design to defraud the owner or deprive him of his property. If the Legislature intended to make the mere use of money or other property mentioned an oifense, it should'not have used...

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  • State v. Mover
    • United States
    • Supreme Court of West Virginia
    • October 31, 1905
    ......        Poffenbarger, J., dissenting. (Syllabus by the Court.)         Error to Circuit Court, Fayette County. William C. Moyer was convicted of embezzlement, and brings error. Reversed.         Adam Littlepage and J. R. Thrift, for plaintiff in error.         C. W. May, Atty. Gen., Frank Lively, E. L. Nuckolls, and C. W. Osenton, for the State.         SANDERS, J. This case is here on a writ ......

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