State v. Trolson

• Citation: 32 P. 930,21 Nev. 419
• Decision Date: 03 May 1893
• Docket Number: 1,382
• Parties: STATE v. TROLSON.
• Court: Supreme Court of Nevada

32 P. 930

21 Nev. 419

STATE v. TROLSON.

No. 1,382

Supreme Court of Nevada

May 3, 1893

Appeal from district court, Storey county; Richard Rising, Judge.

John Trolson was convicted of embezzlement, and appeals. Affirmed.

P Reddy, for appellant.

J. D Torreyson, Atty. Gen., and William Woodburn, for the State.

MURPHY C.J.

The defendant was indicted and charged with having embezzled the sum of $1,877.55, money he had received as agent of Wells Fargo & Co. at Virginia City, Storey county, Nev., from one John McGrath, to be by the said John Trolson, as such agent of Wells, Fargo & Co., forwarded to Richard Mercer, at Los Angeles, state of California; that instead of forwarding the same, as was his duty so to do, by the nature of his employment, he appropriated the said sum of money to his own use. He was tried, convicted, and sentenced to imprisonment in the state's prison for five years.

Errors are alleged in this court, for the first time, on motion in arrest of judgment. It is contended that the indictment is deficient in matters of substance, in not charging that the defendant appropriated the money, "willfully feloniously, and with intent to steal the same." Neither one of these words is used in the indictment. It is not disputed but what the agency is sufficiently alleged, and that he received the money as such agent of Wells, Fargo & Co., and in the regular course of his employment, and that it had never been sent by Trolson to the party for whom it was intended. The charging portion of the indictment complained of reads as follows: "That on or about the said first day of December, A. D. 1892, and before the finding of this indictment, the said John Trolson, having said money and coins, and each of them, in his possession as such agent of said corporation as aforesaid, and being then and there intrusted therewith as aforesaid, for the purpose aforesaid, and for no other purpose, did appropriate the said sum of money, and the said coins, and each of them, to his own use, for his own benefit, and did appropriate the same, and the whole thereof, in a manner and for purposes other than that for which the same were intrusted; and then and there did use the said sum of money, and the said coins, and the whole thereof, and each of said coins, for his own benefit, and did use the same, and the whole thereof, in a manner and for purposes other than that for which the same were intrusted as aforesaid; and thereby did embezzle said sum of money, and said coins, and each of them,"--all of which is contrary to the form of the statute. The indictment shows who placed the money in the defendant's hands, the purposes for which it was intrusted to him, and that, instead of carrying out said trust, he did embezzle the same.

Embezzlement is not an offense at common law, but was created by statute; therefore, in deciding the question submitted, we must be governed by the statute of our own state. The statute under consideration reads as follows: F'Any person, or any agent, manager, or clerk of any person, corporation, association, or partnership, with whom any money, property, or effects shall have been deposited or intrusted, who shall use or appropriate such money, property, or effects, or any part thereof, in any manner, or for any other purpose, than that for which the same was deposited or intrusted, shall be guilty of embezzlement." In setting out a statutory offense it is sufficient to describe it in the words of the statute, with a statement of the acts constituting the offense, in ordinary and concise language, and in such a manner as to show that the statutory offense has been committed by the party therein named, and to inform him as to what is intended. State v. Logan, 1 Nev. 510; U.S. v. Gooding, 12 Wheat. 472; People v. Gray, 66 Cal. 271, 5 P. 240; People v. Tomlinson, 66 Cal. 345; ^[1] Com. v. Bennett, 118 Mass. 451; Golden v. State, 22 Tex.App. 2, 2 S.W. 531; Crump v. State, 23 Tex.App. 616, 5 S.W. 182; Wood v. State, 47 Ark. 492, 1 S.W. 709; Lowenthal v. State, 32 Ala. 589; State v. Wolff, 34 La. Ann. 1153; Huffman v. State, (Ala.) 8 South. Rep. 28; People v. Hennessey, 15 Wend. 150; 1 Whart. Crim. Law, 1061. "The cases are few and exceptional," said Foster, J., in Com. v. Raymond, 97 Mass. 569, "in which an indictment which follows the words of the statute will be held to be insufficient." The word "embezzle" has a well-defined meaning. In the Century Dictionary, "embezzle" is defined as the act "to steal slyly; purloin; filch; make off with; to appropriate fraudulently to one's own use, as what is intrusted to one's care; apply to one's private use by a breach of trust, as a clerk or servant who misapplies his master's money or valuables." Webst.: "To appropriate fraudulently to one's own use, as property intrusted to one's care; to apply to one's private use by a breach of trust, as to embezzle public money." Whart. Law Dict.: "Larceny by clerk or servant or agent; the act of appropriating to himself that which he receives in trust for another." And. Law Dict.: "Appropriation to one's own use of anything belonging to another, whether rightfully or wrongfully in the possession of the taker; theft." "Embezzlement is a sort of a statutory larceny committed by servants and other like persons where there is a trust reposed, and therefore no trespass, so that the act would not be larceny at the common law." 1 Bish. Crim. Law, § 567.

As herein before stated, embezzlement is a crime defined by statute, and it will not be disputed but what it is within the power of the legislature to declare what acts would constitute the crime, and fix the punishment thereof. One of the elements that enters into the statutory definition of embezzlement is the fiduciary or confidential relation existing between the employer and the employe; and this is especially true with regard to agents of such corporations as Wells, Fargo & Co., which was organized for the purpose of and is doing a large express business, in transmitting money and other valuables to different parts of the country, and the work connected therewith must necessarily be done by and through confidential clerks and agents, who are intrusted with the duties of receiving, forwarding, and the care and custody of large sums of money, valuables, and property so deposited and intrusted to said corporation, through its clerks and agents, for shipment, and in which said corporation has a special ownership, and is held responsible for the loss or miscarriage thereof after it is once received and receipted for by its authorized agents. The legislature of 1887 had in view the nature of the business transacted by corporations organized for banking and express companies, milling and mining companies, companies and individuals engaged in stock brokerage. All, or nearly all, of the business had to be done by and through agents, clerks, and employes, who necessarily, from the nature of their employment, were intrusted with large sums of money, valuable shares of stock, and bullion. The legislature was also aware that large sums of money and valuable shares of stock, that had been intrusted to agents for certain purposes, were appropriated and used by such agents, not with the intention of stealing the same, and depriving the owner of the use thereof for all times, but with the hope and expectation of being able to save themselves from financial ruin. If prices in the stock board turned their way, they were all right, and the money and stocks were replaced, and the owners thereof knew nothing of the matter; but, if the reverse should happen, they were bankrupt and defaulters. Take the case under consideration for an example. The defendant testified that he had been in the employment of Wells, Fargo & Co. some 16 years. That after he became a married man, on account of sickness in his family, the wages he received were not sufficient to meet his expenses. That he commenced to use money intrusted to him in small sums; that he speculated in stocks. That he borrowed money at different times to replace the amounts he had taken. That his employer knew nothing of these appropriations.

Finally on the 1st day of December, 1892, he was some $2,000 short in his accounts. When he received the commission mentioned in the indictment he failed to enter it on the book of the office, or to forward the same to the party for whom it was intended, and the company knew nothing of the matter until it was called upon to pay, and did pay, the sum charged in the indictment. He also testified that he never intended to steal the money, but always intended to repay the same, and would have done so if he had been given time. State v. Pratt, (Mo. Sup.) 11 S.W. 978. It was to cover cases of this kind that the legislature left out the words "willfully, unlawfully, and with intent to steal," and the word embezzled contains within itself the charge that the defendant appropriated the money to his own use, and sufficiently designates the crime intended to be charged. State v. Wolff, 34 La. Ann. 1153. The counsel for appellant contends that "in every crime or public offense there must be a joint operation of act and intent, or criminal negligence;" and that the words "with intent to steal" should have been set forth in the indictment. The statute under consideration does not make the criminal intent an element of the offense further than is necessarily included in the words "who shall use or appropriate such money, property, or effects, or any part thereof, in any manner, or for any other purpose than that for which the same was deposited or intrusted, shall be guilty of embezzlement." The language of the statute, which is copied into the indictment, is clear, and plainly imports that the defendant did appropriate the money...