State v. Sullivan

• Decision Date: 14 December 1896
• Docket Number: 12,324
• Citation: 21 So. 688,49 La.Ann. 197
• Court: Louisiana Supreme Court
• Parties: THE STATE OF LOUISIANA v. JAMES J. SULLIVAN

21 So. 688

49 La.Ann. 197

THE STATE OF LOUISIANA v. JAMES J. SULLIVAN

No. 12,324

Supreme Court of Louisiana

December 14, 1896

Argued December 5, 1896

Rehearing Refused January 18, 1897.

APPEAL from the Twentieth Judicial District Court for the Parish of Ascension. Guion, J.

M. J Cunningham, Attorney General, and G. A. Gondran, District Attorney, for Plaintiff, Appellee.

R McCulloh, for Defendant, Appellant.

OPINION

NICHOLLS C.J.

The indictment in this case charges that the defendant, "on the fifteenth day of September, one thousand eight hundred and ninety-six, with force and arms, in the parish of Ascension, and within the jurisdiction of the Twentieth Judicial District Court of the State of Louisiana, being then and there a trustee of Henry O. Maher, Jr., did then in his fiduciary capacity, fraudulently, wrongfully and feloniously use, conceal and otherwise embezzle a gold watch of the value of one hundred dollars, a gold chain of the the value of forty dollars, a gold locket of the value of ten dollars, the whole valued at one hundred and fifty dollars, the lawful property of said H. O. Maher, Jr., which had been there entrusted to his care, keeping and possession by the said H. O. Maher, Jr., with the felonious intent to convert the same to his own use and benefit, and to deprive the said H. O. Maher, Jr., of his lawful property." The only matter called to our attention by counsel of defendant is contained in a bill of exceptions, in which it is recited "that on the trial of the cause the State attempted to show that the watch which accused is charged in the information with having embezzled was pledged in the city of New Orleans by accused to a pawnbroker; and that to any and all evidence of any use made in the city of New Orleans of said watch, by said accused, defendant objected on the ground that the same was inadmissible under the information which charges the accused with having wrongfully converted said watch to his own use in the parish of Ascension -- that the court overruled said objection, on the ground that should the State produce evidence to show that accused had formed the intention of converting the watch to his own use in the parish of Ascension and pursuant to said intention so formed in said parish had gone to the city of New Orleans and there pawned said watch, accused could be, under the law prosecuted either in said city or in said parish; that said evidence was, therefore, admissible; that he would charge the jury that unless they found from the evidence that accused had formed the intent to convert said watch in the said parish, they must discharge the said Sullivan;" that to this ruling defendant excepted and reserved a bill of exceptions.

Appended to the bill is the following statement of the judge: "As stated in the foregoing bill of exceptions, I allowed the State to show the fact that the property alleged to have been embezzled by defendant was pawned by him in the city of New Orleans, but I stated at the time that I would charge the jury that unless the accused had wrongfully appropriated the property in Ascension parish, and had conceived the idea of converting it to his own use in said parish, they could not convict him, and I did so charge the jury, and expressly stated to them that if accused had only conceived the idea of appropriating the property in the city of New Orleans, he could not be convicted in Ascension parish." The accused was found guilty by the jury and sentenced to one year's imprisonment at hard labor in the penitentiary. He appealed.

No objection appears to have been made to the indictment, nor to the charge given by the court. No plea to the jurisdiction of the court was entered. Defendant went to trial without objection. The case comes to us on an objection by defendant to the reception of evidence under the recitals of the information. Defendant's complaint is, that under the allegations of the information it was not competent for the court to allow testimony to show that the watch charged to have been embezzled was pawned in the city of New Orleans. He made no motion to strike out the evidence. (See Rice on Criminal Evidence, Vol. 3, Secs. 256 et seq.). He made no attempt to make use of the fact complained of, for a new trial.

In the brief filed in behalf of the defendant we understand his counsel to maintain that as the "possession" of the jewelry had been given to defendant by the owner, and his original possession was lawful -- he continued to hold the same lawfully until actual conversion. That even if he conceived in the parish of Ascension the idea of disposing of the goods...