State v. Whitehouse

• Decision Date: 29 March 1901
• Citation: 95 Me. 179,49 A. 869
• Parties: STATE v. WHITEHOUSE.
• Court: Maine Supreme Court

49 A. 869

95 Me. 179

STATE

v. WHITEHOUSE.

Supreme Judicial Court of Maine.

March 29, 1901.

(Official.)

Exceptions from superior court, Kennebec county.

Eugene W. Whitehouse was indicted for embezzling funds of his ward's estate. General demurrer was overruled, and he excepts. Exceptions overruled.

First count: "The jurors for said state upon their oath present that Eugene W. Whitehouse, of Augusta, in said county of Kennebec, on the fourteenth day of December, in the year of our Lord one thousand eight hundred and ninety-one, at Augusta, in said county of Kennebec, was duly appointed by the judge of probate for said county of Kennebec guardian of and to Charles A. Prescott, a minor under the age of twenty-one years, then and there being and having estate in said county of Kennebec, and residing in the commonwealth of Massachusetts, and then and there accepted said trust and office, and was then and there duly qualified as guardian of and to said Charles A. Prescott; and afterwards, on the fourth day of February, in the year of our Lord one thousand eight hundred and ninety-two, at said Augusta, whilst he, the said Eugene W. Whitehouse, was guardian as aforesaid, and in his said capacity of guardian of and to the said Charles A. Prescott, did receive into his charge and custody certain money, to the amount and of the value of two thousand one hundred and thirty-one dollars and eighty cents, of the money and property of and belonging to the said Charles A. Prescott, a more particular description whereof is to your said jurors unknown; and afterwards, on the thirtieth day of September, in the year of our Lord one thousand eight hundred and ninety-five, at said Augusta, being then and there, on the day last aforesaid, the guardian of the said Charles A. Prescott as aforesaid, and in his said capacity of guardian as aforesaid having the charge and custody of the aforesaid money, then and there, on the day last aforesaid, the property and money of and belonging to the said Charles A. Prescott, his said ward, in violation of his said trust, did unlawfully embezzle and fraudulently convert to his own use the said money, whereby, and by force of the statute in such cases made and provided, the said Eugene W. Whitehouse is deemed to have committed the crime of larceny."

Fourth count: "And the jurors for said state, upon their oath, do further present that the said Eugene W. Whitehouse, on the thirtieth day of September, in the year of our Lord one thousand eight hundred and ninety-five, at said Augusta, then and there being the guardian lawfully appointed by the judge of probate for said county of Kennebec to and of Charles A. Prescott, a minor under the age of twenty-one years then and there being, did, whilst he was guardian as aforesaid, and by virtue of his said guardianship, have the charge and custody of certain money to the amount and of the value of two thousand one hundred and thirty-one dollars and eighty cents, of the money and property of and belonging to the said Charles A. Prescott, and then and there the money aforesaid, in violation of his said trust, did unlawfully embezzle and fraudulently convert to his own use, against the peace of the state, and contrary to the form of the statute in such case made and provided."

Argued before WISWELL, C. J., and EMERY, STROUT, SAVAGE, FOGLER, and POWERS, JJ.

E. W. Wbitehouse, in pro. per.

G. W. Hes elton, Co. Atty., for the State.

WISWELL, C. J. The defendant filed a general demurrer to an indictment against him containing 10 counts, and, upon the same being overruled by the court below, brings the case to the law court upon exceptions to such ruling.

The prosecuting attorney concedes that the second, third, and last six counts are insufficient, thus leaving the first and fourth counts only for consideration. These counts are both under Rev. St. c. 67, § 31, as follows: "If a guardian, having the charge and custody of property belonging to his ward, embezzles the same in violation of his trust, or fraudulently converts it to his own use, he shall be punished by fine not exceeding five thousand dollars, or confinement to hard labor not exceeding ten years, or both."

Chapter 241, Pub. Laws 1893, is as follows: "Whoever embezzles, or fraudulently converts to his own use, or secretes with intent to embezzle or fraudulently convert to his own use, money, goods, or property delivered to him, or any part thereof, which may be the subject of larceny, shall be deemed guilty of larceny."

Both of these counts allege that, upon a day and at a place named, the defendant was the guardian of a certain minor; that in such capacity he had the charge and custody of a certain amount of money belonging to his ward; and that upon the day and at the place named, in violation of his trust as such guardian, he embezzled and fraudulently converted the same to his own use. The first count differs from the fourth in alleging with more particularity and detail the appointment of the defendant as guardian, his acceptance of the trust, and qualification therefor. The first count also contains this averment: "Whereby and by force of the statute in such cases made and provided the said Eugene W. Whitehouse is deemed to have committed the crime of larceny." The count concludes as follows: "And so the jurors aforesaid, upon their oath aforesaid, do say and present that the said Eugene W. Whitehouse, then, and there on the day last aforesaid, in manner and form aforesaid, the said money of the property of and belonging to the said Charles A. Prescott feloniously did steal, take, and carry away, against the peace of the state, and...