State v. Washington

• Decision Date: 01 October 1889
• Docket Number: 242
• Citation: 6 So. 633,41 La.Ann. 778
• Court: Louisiana Supreme Court
• Parties: THE STATE OF LOUISIANA v. JOHN WASHINGTON

6 So. 633

41 La.Ann. 778

THE STATE OF LOUISIANA v. JOHN WASHINGTON

No. 242

Supreme Court of Louisiana

October 1, 1889

APPEAL from the Tenth District Court, Parish of Red River. Hall, J.

J. C Pugh and J. Henry Shepherd, District Attorneys, for the State, Appellant.

J. C Egan, J. F. Pierson and S. A. Hull, for Defendant and Appellee.

OPINION

WATKINS J.

The State is appellant from a judgment quashing, as insufficient in material averment, an indictment for embezzlement, couched in these words, viz:

"John Washington * * did feloniously and wrongfully use, and convert to his own use, and conceal and embezzle $ 5, lawful money, of the value of $ 5, of the property of Sam Hollingsworth, then and there being found, which said money had then and there been entrusted to the said John Washington to deliver to one Dan Harvey, contrary to form of the statute, etc."

The district judge was of opinion that the indictment was vicious, because it did not charge that the accused was a servant, clerk, broker, agent, consignee, trustee, attorney mandatary, depositary, common carrier or bailee, and as such, entrusted with the money alleged to have been embezzled by him, on the hypothesis that such was matter of essential description, and sacramental; and that it "is not a crime for any other person to commit the act, than those mentioned in the statute;" and that "the indictment must contain a word (or term) found in the statute, else it will ordinarily be defective, as violating a well known rule of criminal pleading."

This is, substantially, the position assumed, and assigned by defendant's counsel in their motion to quash; or, in other words, that the indictment does not show the capacity in which the defendant received the money, or the fiduciary relation existing between the defendant and the person who had entrusted the money to him.

The statute under which this indictment was found is in these words, viz:

"Any servant, clerk, broker, agent, consignee, trustee, attorney, mandatary, depositary, common carrier, bailee, etc., * * who shall wrongfully use, dispose of, conceal, or otherwise embezzle any money * * which he shall have received for another, or for his employer, principal, or bailor, or by virtue of his office, trust or employment, or which shall have been entrusted to his care, keeping or possession by another, or by his employer, principal, or bailor * * * upon conviction, etc."

Evidently the statute does indicate, and plainly enumerates the various capacities in which persons must be employed, in order to constitute the wrongful use, or misappropriation of funds by them a violation of its provisions, and such an act embezzlement within its contemplation; but we know of no rule of law, or of...