State v. Smith

• Decision Date: 04 March 1940
• Docket Number: 35603.
• Citation: 195 So. 523,194 La. 1015
• Court: Louisiana Supreme Court
• Parties: STATE v. SMITH et al. In re SMITH et al.

195 So. 523

194 La. 1015

STATE v. SMITH et al.

In re SMITH et al.

No. 35603.

Supreme Court of Louisiana.

March 4, 1940

Rehearing Denied April 1, 1940.

James Monroe Smith and others were charged with embezzlement and upon overruling of plea to territorial jurisdiction of the court, they applied for and were granted writs of certiorari.

Ruling of trial court set aside, and plea to jurisdiction sustained.

In Louisiana, determination of what acts constitute crimes is purely legislative function, which cannot be exercised by judiciary.

Warren Doyle, of New Orleans, John R. Hunter, of Alexandria, and Daly & Hamlin, of New Orleans (Hugh M Wilkinson and Jno. D. Lambert, both of New Orleans, of counsel), for relators.

Lessley P. Gardiner, Atty. Gen., and Niels F Hertz, Dist. Atty., and Albert B. Granzin, Jr., Asst. Dist Atty., both of New Orleans, for respondent.

FOURNET, Justice.

The relators, having been charged by bill of information in the Parish of Orleans with having embezzled funds of the Louisiana State University at Baton Rouge, excepted to the territorial jurisdiction of the court, alleging that the offense, if any, was committed in East Baton Rouge Parish. Upon the overruling of this plea by the trial judge, they applied for and were granted a writ of certiorari.

Jurisdiction to try and punish a person accused of a crime can be acquired in no other manner than in the method prescribed by law, and one of the fundamental rules of criminal procedure is that ‘ * * * one who commits a crime is answerable therefor only in the jurisdiction where the crime is committed, and in all criminal prosecutions, in the absence of statutory provision to the contrary, the venue must be laid in the county or district of the offense, and must be proved as laid.’ 16 Corpus Juris 185, Section 260. (Italics ours.) See, also, 8 R.C.L. 98, Section 58; 1 Brill's Cyclopedia of Criminal Law, Section 307; State v. Burton, 105 La. 516, 29 So. 970; State v. Harris, 107 La. 325, 327, 31 So. 782; State v. Montgomery, 115 La. 155, 38 So. 949.

The constitution of the State of Louisiana expressly provides that ‘ * * * all trials shall take place in the parish in which the offense was committed, unless the venue be changed * * *.’ Article 1, Section 9, Constitution of 1921. See, also, Code of Criminal Procedure, Article 13. ‘ This provision of the Constitution not only quarantees the defendant that he shall not be convicted in any other parish that that in which the offense was committed but guarantees that he shall not be tried in any other parish . This identical question was decided in the case of State v. Hogan, 157 La. 287, 102 So. 403, wherein this court, after reviewing all the prior decisions on this subject matter, concluded that the defendant is as a matter of right entitled to have his plea to the territorial jurisdiction of the court decided before being placed on trial for the offense.’ State v. Nugent, 191 La. 198, 184 So. 746, 747. See, also, State v. Moore, 140 La. 281, 72 So. 965; State v. Leppert, 140 La. 314, 72 So. 979; State v. Hogan, 157 La. 287, 102 So. 403. (Italics ours.)

Embezzlement is a statutory and not a common law offense, and the indictments charging people under the statutes of the various states must, of course, be governed by the provisions of these statutes, which vary in the different states. It can be said, however, that, generally speaking, embezzlement is a fraudulent and felonious appropriation of another's property by the person to whom it has been entrusted or into whose hands it has lawfully come. The gist of the offense is a breach of trust. The essence of the offense is the conversion of the property. In other words, the crime of embezzlement cannot be committed until the owner has been deprived of his property by its conversion to the use of the person to whom it has been entrusted.

It is stated by Clark and Marshall in their book on crimes, page 760, paragraph 502, that ‘ The offense of embezzlement * * * is committed in the state or county in which the money or property is converted, and not necessarily where it is received . To constitute a conversion, however, there need be no disposal or expenditure of the money or property, but the offense is complete whenever a person who has been intrusted therewith forms an intent to convert it to his own use, and has possession with such intent . * * *’ (Italics ours.)

In Corpus Juris, Volume 16, page 189, Section 272, it is declared that a ‘ Defendant cannot be prosecuted for embezzlement in a county where the crime was not actually, or in contemplation of law, perpetrated. * * * The crime of embezzlement is committed in the county in which the money or the property is converted, although it may have been received in another county, and it may, and as a rule should, be there indicted and tried. * * *’ (Italics orus.) See, also, State v. Nahoum, 172 La. 83, 133 So. 370.

In a footnote to this section we find the following comment and authorities cited in support thereof:

‘ Embezzlement By Public Officer.-(1) In the absence of affirmative proof to the contrary the embezzlement of public money by a tax collector will be presumed to have been committed in the county of which he is an officer . Robson v. State, 83 Ga. 166, 9 S.E. 610. In a prosecution under Comp.L. Sec. 5771, denouncing embezzlement by a state officer of moneys in the treasury, money is properly regarded as in the treasury, whenever and wherever it is in the official custody, or under the official control and direction of the state treasurer for the use of the state, and the venue may be laid in the county in which the capital of the state is located notwithstanding the fact that defendant was not personally present where the money happened to be at the time he abstracted it or converted it to his own use. People v. McKinney, 10 Mich. 54.’ (Italics ours.)

It is stated in McClain's work on criminal law that ‘ It often becomes a matter of great importance to determine where the offense is to be deemed to have been committed. It is of course committed wherever the wrongful conversion or failure to account takes place, but that it sometimes a question of much complication. * * * In a case of embezzlement by a public officer, the crime will be taken to have been committed in the county of which he is an officer, unless the contrary affirmatively appears.’ Volume 1, page 650. (Italics ours.)

Thus it may be seen that under all of the authorities, except as otherwise provided by statute, the offense of embezzlement is committed in the parish where the wrongful conversion takes place.

There are many cases reported involving the embezzlement made a crime by Section 903 of the Revised Statutes of 1870, the statute under which the relators here are being prosecuted, but we fail to find any, and none has been cited by either counsel for the state or counsel for the relators, wherein the identical issue raised here was involved. In all of the reported cases that we were able to find in which public funds were embezzled by a public official, the venue was laid in the parish where the money was entrusted to the official and in which the funds were located.

The only statutory provisions in Louisiana fixing jurisdiction in criminal cases, other than Articles 13, 14, 15, and 16 of the Code of Criminal Procedure (the latter three articles apply only in certain specific cases not involved here), to which our attention has been called, are Act No. 123 of 1936, which will be hereinafter discussed, and Section 988 of the Revised Statutes of 1870, an exact replica of Section 12 of Act No. 121 of 1855, which reads as follows:

‘ When any crime or misdemeanor shall be committed on the boundary of two or more parishes, or within one hundred yards thereof, or within one hundred yards of any other boundary, or shall be begun in one parish and completed in another, it may be dealt with, inquired of, tried, determined and punished in either of the parishes in the same manner as if it had been actually and wholly committed therein.’

The above provision has been before this court on numerous occasions for consideration. See State v. Harris, 107 La. 325, 31 So. 782; State v. Montgomery, 115 La. 155, 38 So. 949; State v. Leppert, 140 La. 314, 72 So. 979; State v. Moore, 140 La. 281, 72 So. 965, 967.

In the case of State v. Moore, the organ of the court, discussing very thoroughly the provisions of this section, said:

‘ The Constitution prevailing when Act No. 121 of 1855 was enacted, that of 1852, did not require that all criminal trials should take place in the parish in which the offense was committed. The only requirement in that respect was contained in article 103, that the accused should have a speedy public trial by an impartial jury of the vicinage. That provision of the Constitution, however, was changed in article 105 of the Constitution of 1864, so as to read:

" The accused shall have a speedy public trial by an impartial jury of the parish in which the offense shall have been committed.'

‘ Article 105 of the Constitution of 1864, therefore, in effect, repealed section 12 of Act No. 121 of 1855. The provision quoted from article 105 of the Constitution of 1864 was embodied in article 6 of the Bill of Rights, in the Constitution of 1868, in precisely the same language but with this addition, ‘ unless the venue be changed.’

‘ Notwithstanding the provisions of article 6 of the Bill of Rights in the Constitution of 1868, and in direct conflict therewith, the Legislature re-enacted section 12 of Act No. 121 of 1855 as section 988 of the Revised Statutes, approved March 14, 1870.

‘ The law enacted as section 988 of the Revised Statutes however, was again repealed by this provision in ...