State v. Scoggins

• Decision Date: 23 December 1907
• Citation: 106 S.W. 969,85 Ark. 43
• Parties: STATE v. SCOGGINS
• Court: Arkansas Supreme Court

106 S.W. 969

85 Ark. 43

STATE v. SCOGGINS

Supreme Court of Arkansas

December 23, 1907

Appeal from Conway Circuit Court; J. Hugh Basham, Judge; reversed.

STATEMENT BY THE COURT.

The appellee was indicted in the Conway Circuit Court for embezzlement. Omitting the formal parts, the indictment is as follows:

"The said J. H. Scoggins, in the county and State aforesaid, on the first day of August, 1906, then and there being over the age of sixteen years, and being the agent of the Missouri Pacific Railway Company, an incorporated company, and having then and there in his custody and possession as such agent as aforesaid, eighteen hundred dollars, gold, silver and paper money, lawful money of the United States of America and the property of the Missouri Pacific Railway Company aforesaid, did unlawfully, fraudulently and feloniously make away with and embezzle and convert to his own use said sum of eighteen hundred dollars, as aforesaid, without the consent of the aforesaid Missouri Pacific Railway Company, against the peace and dignity of the State of Arkansas.

"And the grand jury aforesaid, in the name and by the authority aforesaid, further accuses the said J. H. Scoggins of the crime of embezzlement, committed as follows, towit: The said J. H. Scoggins, in the county and State aforesaid, on the first day of August, 1906, then and there being over the age of sixteen years, and being the agent of the St. Louis, Iron Mountain & Southern Railway Company, an incorporated company and having then and there in his possession and custody as such agent, as aforesaid, eighteen hundred dollars, gold silver and paper money, lawful money of the United States of America, and the property of the St. Louis, Iron Mountain & Southern Railway Company aforesaid, did unlawfully fraudulently and feloniously make way with, embezzle and convert to his own use the said sum of eighteen hundred dollars, as aforesaid, without the consent of the said St. Louis, Iron Mountain & Southern Railway Company, against the peace and dignity of the State of Arkansas."

The defendant demurred, his specific grounds of objections being set out as follows:

"1. Said indictment is not direct and certain as to the circumstances of the offense charged, in this: that the facts constituting defendant an agent of the companies mentioned are not set out, nor is it stated what kind of agent defendant was, nor what his duties as such agent were, nor at what place he was agent.

"2. No facts are alleged by which it is made to appear that defendant was the agent of said railway companies or either of them.

"3. Said indictment does not state that as such agent it was defendant's duty to receive or hold the money alleged to have been embezzled.

"4. It is not alleged in said indictment that the money charged to have been embezzled by defendant, or any part of it, came to defendant's hands or under his care or custody by virtue of his agency.

"5. Said indictment does not state facts sufficient to constitute the offense."

The demurrer was sustained, and the State appeals.

Reversed and remanded.

William F. Kirby, Attorney General and Daniel Taylor, Assistant, for appellant.

In an indictment it is not required that the language of the statute defining the offense be strictly followed, if other words conveying the same meaning are used. Kirby's Digest, § 2241. See also Id. §§ 2242, 2243.

No indictment is insufficient by reason of any defect which does not tend to the prejudice of the substantial rights of the defendant on the merits. Id. § 2229.

Construing the language of the indictment in the usual and ordinary acceptation, it can have no other meaning than that the money came into defendant's possession by virtue of his agency.

Sellers & Sellers, for appellee.

The statute provides that "an indictment must be direct and certain as regards * * * the particular circumstances of the offense charged, where they are necessary to constitute a complete offense." Kirby's Digest, § 2227. And the Code does not dispense with the clearness and certainty recognized by the former practice and the common law. 26 Ark. 331. See also 38 Ark. 519; 10 Ark. 536; 6 Ark. 519.

"All the ingredients of fact that are elemental to the definition (of embezzlement) must be alleged so as to bring the defendant precisely and clearly within the statute; if that can be done by simply following the words of the statute, that will do; if not, other allegations must be used." 105 U.S. 611 Keeping in mind the elemental distinction between larceny and embezzlement, it becomes patent that in the latter crime the manner in which possession was obtained is a material element of the charge, and the indictment in this case, in using the words "having then and there in his possession and custody as such agent" the funds alleged to have been embezzled, is not sufficient, and such language is not equivalent to charging that the funds came into the defendant's possession or under his care or control by virtue of his agency. It does not negative the idea that the funds may not have come into his possession while a mere bailee. 29 Tex. 102; 8 Tex.App. 310; 31 Cal. 110; 78 Ala. 33; 46 Neb. 120; 47 Ark. 488; 54 Me. 408; 1 Bishop, Crim. Proc. 329; 5 Denio, 79; 1 Chitty, Crim. Law, §§ 281-3; 19 Cal. 600; 160 U.S. 268; 19 S.W. 715; 43 La.Ann. 202; 15 Nev. 167; 13 Ark. 171; 98 Am. Dec. 138, note; 9 Enc. Pl. & Pr. 422.

OPINION

WOOD, J., (after stating the facts.)

Appellee was indicted under section 1837 of Kirby's Digest, which is as follows:

"If any clerk, apprentice, servant, employee, agent or attorney of any private person, or of any co-partnership, except clerks, apprentices, servants and employees within the age of sixteen years, or any officer, clerk, servant, employee, agent or attorney of any...