State v. Thomes

• Decision Date: 16 May 1927
• Citation: 137 A. 396
• Parties: STATE v. THOMES.
• Court: Maine Supreme Court

137 A. 396

STATE

v. THOMES.

Supreme Judicial Court of Maine.

May 16, 1927.

Exceptions from Superior Court, Cumberland County, at Law.

Robert B. Thomes was indicted for embezzlement, and he brings exceptions to the overruling of his general demurrer to the indictment. Exceptions overruled, and respondent permitted to plead anew.

Argued before WILSON, C. J., and PHILBROOK, DUNN, DEASY, BARNES, BASSETT, and PATTANGALL, JJ.

Ralph M. Ingalls, Co. Atty., of Portland, for the State.

William H. Gulliver and William B. Mahoney, both of Portland, for respondent.

PATTANGALL, J. Indictment for embezzlement. General demurrer. Demurrer overruled. Exceptions taken. Right to plead anew reserved.

Indictment contains 42 counts. Fourteen distinct acts of embezzlement are charged, each under 3 counts. A consideration if the first 3 counts covers the case, the remaining counts being repetitions of these 3 so far as legal form is concerned. The demurrer, being general, cannot be sustained if any one of the counts is sufficient.

The 3 counts must be considered separately.

First Count—Based on section 10, c. 122, R. S. This count appears to contain all of the necessary averments with the exception of a sufficient description of the property involved. This description is confined to the words, "certain property, to wit, the sum of one thousand nine hundred fifty-seven dollars." Such a description would be sufficient to satisfy an indictment brought under section 8, modified, as that section is, by the provisions of section 9 (a proposition discussed fully later on), but insufficient in an indictment under section 10.

Under this section property should be described with the particularity required in an indictment for larceny. 9 R. C. L. 1290. An averment of the embezzlement of a certain amount of money in dollars and cents is insufficient. Moore v. United States, 160 U. S. 275,16 S. Ct. 294, 40 L. Ed. 422. The necessity of describing the property with the same clearness and precision as in larceny flows from the idea that embezzlement is rather a species of larceny than an offense of a distinct nature. State v. Thompson, 42 Ark. 517. Embezzlement was not an offense at common law. It is purely a statutory crime. It partakes of the nature of larceny, but differs from the latter in that the original taking in embezzlement is lawful or with the consent of the owner, whereas in larceny the felonious intent existed at the time of taking. 3 Words and Phrases, Second Series, 20. It has often been stated that embezzlement is larceny committed by a certain class of persons, without a trespass. Commonwealth v. Parker, 165 Mass. 539, 43 N. E. 499. The rule of pleading, concerning description of property in indictments under statutes such as section 10, is the same as in indictments charging larceny.

In an indictment for larceny, the descriptive allegation so many dollars, or so many dollars in money, is bad. Bishop's New Criminal Procedure, vol. 2, § 73. An indictment for stealing money is not sufficient if it states only the aggregate amount stolen without specification of the number, kind, or denomination of the pieces, unless the insufficient averment is cured by an allegation of lack of knowledge of these details on the part of the grand jury. Commonwealth v. Sawtelle, 11 Cush. (Mass.) 144; People v. Hunt, 251 Ill. 446, 96 N. E. 220, 36 L. R. A. (N. S.) 933; Merwln v. People, 26 Mich. 298, 12 Am. Rep. 314.

This count follows the form prescribed in Whitehouse and Hill's Criminal Procedure, a form applicable, so far as the descriptive portion is concerned, to indictments brought under section 8 as modified by section 9, but insufficient in an indictment under section 10, although erroneously applied thereto.

The first count in the indictment and those which follow it in form are defective, and to these counts the demurrer should have been sustained.

Second Count.—Based on section 8, chapter 122, R. S. All of the required elements of an indictment charging the taking and secreting property with intent to embezzle or fraudulently convert the same are fairly and fully set forth in this count. It answers every demand of the statute and contains the additional allegations held necessary by our court.

In State v. Stevenson, 91 Me. 107, 39 A. 471, the requisites of such an indictment were stated to be that there should be set forth: (1) Fiduciary relation; (2) fraudulent conversion; (3) larceny in apt phrase.

The last requirement is stated too broadly. One element in larceny is the original felonious taking. Such an averment in an indictment for embezzlement would be obviously objectionable, as such a taking would negative the necessary proposition of fiduciary relation, but with that limitation the rule may be accepted. Good authority demands that an indictment for embezzlement should conclude with the averment, "feloniously did take, steal, and carry away." Commonwealth v. Pratt, 132 Mass. 246. This was, without doubt, the averment which the court had in mind, in its use of the words, "larceny in apt phrase."

The fiduciary relation must be declared. It is the basis of the charge. It was omitted in the indictment discussed in State v. Cates, 99 Me. 68, 58 A. 238, and the indictment held good on demurrer. But the demurrer was argued on other grounds, and this particular defect was not called to the attention of the court. Had it been the ruling would have been otherwise, as the court recognized the need of such an averment in distinct and specific language in the closing paragraph of the opinion, although the fact that the indictment did not contain it was overlooked.

The count under consideration contains every necessary allegation. The property involved is described as "certain money to the amount of one thousand nine hundred fifty-seven dollars." Such a description would be insufficient under section 10. It is sufficient under section 8 because...