State v. Turner

• Decision Date: 12 November 1894
• Citation: 38 P. 864,10 Wash. 94
• Parties: STATE v. TURNER.
• Court: Washington Supreme Court

38 P. 864

10 Wash. 94

STATE v. TURNER.

Supreme Court of Washington

November 12, 1894

Appeal from superior court, Walla Walla county; William H. Upton Judge.

Prosecution of J. M. Turner for larceny. From a judgment sustaining a demurrer to the indictment, the state appeals. Reversed.

Miles Poindexter, Pros. Atty., for the State.

J. M Turner, in pro. per.

DUNBAR C.J.

The defendant (respondent here) was indicted in the superior court of Walla Walla county for the crime of larceny. The indictment, omitting the formal part, was as follows "The said defendant, J. M. Turner, in the city and county of Walla Walla, Washington, on the 1st day of December, A. D. 1893, being then and there by one Joseph Tachi intrusted with the sum of $479, lawful money current of the United States, of the value of $479, the said money then and there being the money and property of the said Joseph Tachi; and the said J. M. Turner, by virtue of being intrusted with said money, as aforesaid, then and there receiving hire from said Joseph Tachi, did then and there, by virtue of being intrusted with said money and receiving said hire as aforesaid, receive and take into his possession the money aforesaid, which he, the said defendant then and there held for and in the name and on account of said Joseph Tachi, and he, the said defendant, J. M. Turner, did then and there, as aforesaid, willfully, intentionally, wrongfully, unlawfully, fraudulently, and feloniously convert to his own use the said money, thereby committing the crime of larceny," etc. To this indictment respondent interposed a demurrer, to the effect that the facts charged in the information did not constitute a crime, which demurrer was sustained by the court. To the ruling of the court in sustaining the demurrer the plaintiff duly excepted, and has brought the case here on appeal.

The contention of the respondent is that the information is not sufficient, because it does not state the purpose for which the money or property was intrusted to the respondent, and does not allege that a demand was made upon him for the same. The respondent cites Terry v. State, 1 Wash. 277, 24 P. 447, in support of this contention. An examination of that case shows that it is not at all in point here. What the court decided there was that an indictment for embezzlement by an agent which does not allege that the defendant was an agent for hire was fatally defective, under the provisions of the Code of Washington (section 835), and that the words "for hire," in said section, qualified each of the classes of persons enumerated therein. The question decided in that case would not be involved here, even had the legislature not afterwards changed the law eliminating the words "for hire" from the same, the law reading now "with or without hire," etc. The statute under which this information was filed, viz. section 55 of the Penal Code, is as follows: "If any agent, clerk officer, servant or person to whom any money or other property shall be entrusted, with or without hire, shall fraudulently convert to his own use, or shall take and secrete the same with intent fraudulently to convert the same to his own use, or shall fail to account to the person so intrusting it to him, he shall be deemed guilty of larceny," etc. Let us look at the requirements of the statute, and see if they have been met in this indictment. The first qualification is that it must be a person to whom money or other property shall be intrusted. The allegation will be found in the indictment that money described was intrusted to the respondent, J. M. Turner, with the name of the person intrusting it and the name of the owner of the money. The information in this case alleges that the money was intrusted for hire, but as we have before observed, under the law as it now exists, that would not be a necessary allegation. The information further informs the defendant that, by virtue of being intrusted with said money, he took the same into his possession, and held it for and in the name and on account of the person intrusting it and owning it, and that he fraudulently converted the same to his own use; so that it seems to us all the requirements even contended for by the respondent were met by the indictment, viz.: First, not only that the respondent was a person, but the facts show that he was an agent; second, that he received the property of his principal; third, that he received it in the course of his employment; fourth, that he fraudulently and feloniously converted it to his own use. It will be noticed that the crime charged here is charged in the language of the statute. It is contended by the respondent that this is not sufficient, and some cases are cited which respondent claims sustain that contention. We think the overwhelming weight of authority is to the contrary, and that it is sufficient in crimes of this character to charge the crime in the language of the...