State v. Stevenson

• Decision Date: 27 December 1897
• Parties: STATE v. STEVENSON.
• Court: Maine Supreme Court

39 A. 471

91 Me. 107

STATE

v. STEVENSON.

Supreme Judicial Court of Maine.

Dec. 27, 1897.

(Official.)

Exceptions from supreme Judicial court, Aroostook county.

George H. T. Stevenson was convicted of embezzlement.

After trial and conviction of the defendant, he moved in arrest of judgment, because of the insufficiency of the indictment. The presiding justice having overruled the motion, the defendant took exceptions to the ruling. Judgment arrested.

The Indictment was found at the April term of this court, sitting below, on the fourth Tuesday of April, 1897, at Houlton. The material portions of the indictment are as follows:

"The jurors for said state upon their oath present that George H. T. Stevenson, of Houlton, in said county of Aroostook, at Houlton, in said county of Aroostook, on the nineteenth day of December, in the year of our Lord one thousand eight hundred and ninety-six, did receive and take into his possession certain money, of the amount and of the value of ninety-six dollars, and divers promissory notes current as money in said state of Maine, of the amount and of the value of ninety-six dollars, and sundry pieces of gold and silver coin current as money in said state of Maine, of the amount and of the value of ninety-six dollars, and one pension check of the United States of America, payable to the order of William H. Stewart, and indorsed by the said William H. Stewart, for the amount and of the value of ninety-six dollars, and all of the property and moneys of the said William H. Stewart, and all of which property and money was then and there delivered to him, the said George H. T. Stevenson, by said William H. Stewart; and that the said George H. T. Stevenson there after wards, on said nineteenth day of December, in the year of our Lord one thousand eight hundred and ninety-six, with force and arms, the said money, promissory notes, gold and silver coin, and check, so as aforesaid delivered to him, and by him had, received, and taken into his possession, then and there unlawfully and feloniously did embezzle and fraudulently convert to his own use, without the consent of him, the said William H. Stewart, the said money, promissory notes, gold and silver coin, and check being then and there the subject of larceny; whereby, and by force of the statute in such case made and provided, said George H. T. Stevenson is deemed to have committed the crime of larceny, and so the jurors aforesaid, upon their oath aforesaid, do say that the said George H. T. Stevenson, then and there, in manner and form as aforesaid, the said money, promissory notes, gold and silver coin, and check, of the property and moneys of the said William H. Stewart, feloniously did steal, take, and carry away, against the peace of said state, and contrary to the form of the statute in such case made and provided."

Motion in Arrest of Judgment.

"And now, after trial and verdict of guilty, and before judgment, the said George H. T. Stevenson comes, etc., and says that Judgment ought not to be rendered against him, because he says that said indictment and the matters therein alleged in the manner and form in which they are stated are not sufficient in law for any judgment to be rendered thereon, and the said indictment is bad, defective, and insufficient in the following particulars:

"First. That said indictment contains no description of the act complained of, and no averment of any crime.

"Second. That no crime known to the law is set forth in said indictment.

"Third. That said indictment does not state the purpose for which the property, money, goods, and so forth, mentioned in said indictment, were delivered to said respondent.

"Wherefore he prays that judgment on said verdict may be arrested, and that he may be hence dismissed and discharged.

"Dated this 11th day of May, A. D. 1897.

"George H. T. Stevenson."

Motion in arrest of judgment overruled pro forma, and indictment adjudged sufficient.

Wallace R. Lumbert, Co. Atty., for the State.

Ira G. Hersey, for defendant.

HASKELL, J. Indictment under Act 1893, c. 241, for larceny by embezzling the goods of another. The indictment in substance charges that the defendant "did receive and take into his possession certain money," etc., delivered to him by one Stewart, which the defendant "unlawfully and feloniously did embezzle and fraudulently convert to his own use, the same being the subject of larceny, and so did feloniously steal, take, and carry away the same, contra pacem, etc.

The defendant was found guilty, and moves in arrest of judgment, because the indictment does not charge the receipt of the money, etc., in any fiduciary relation, or upon any trust and confidence.

The attorney for the state contends that such averments are unnecessary under the statute that inhibits, as larceny, the embezzlement of money, goods, or property, which may be the subject of larceny, delivered to the defendant.

The act is as follows:

"Whoever embezzles, or fraudulently converts to his own use, or secretes with intent to embezzle or fraudulently convert to his own use, money, goods or property delivered to him, or any part thereof, which may be the subject of larceny, shall be deemed guilty of larceny."

The purpose of the statute is to create a peculiar species of larceny, where the felonious taking is wanting, and all authorities agree that in such case an indictment for larceny proper cannot be maintained; that is, proof of embezzlement will not support an indictment for larceny. It logically follows, therefore, that an indictment for larceny by embezzlement must distinguish the offense by apt averment, and the distinguishing element is the breach of some trust or confidence. That is the gist of the crime, and therefore must be charged. No authority can be found to the contrary. State v. Walton, 62 Me. 106, is cited at the bar, but that case squarely holds to this doctrine. That was an indictment against a public officer. The court says: "The questions are: Was he a public officer? Has he fraudulently converted to his own use money, which he had in his possession and under his control, by virtue of his office? It is set forth in the indictment that the defendant, being a public officer, * * * did by virtue of his office, and while employed therein, receive and have in his possession certain money, etc., and the said money did then and there unlawfully and fraudulently embezzle and convert to his own use, and so did steal, take, and carry away the same." State v. Lynch, 88 Me. 195, 33 Atl. 978, is cited to the point that offenses must be charged in the words of the statute or in language equivalent thereto. Certainly, offenses must always be so charged, but sometimes such averments are not sufficient. One example is where an offense is prohibited, but not defined. There the indictment should charge the elements of the offense as well as the statute inhibition. For instance, a statute might prohibit murder, arson, robbery, or...