Territory Hawai`i v. Armstrong

• Decision Date: 14 April 1915
• Citation: 22 Haw. 526
• Parties: TERRITORY OF HAWAII v. WILLIAM F. ARMSTRONG
• Court: Hawaii Supreme Court

22 Haw. 526

TERRITORY OF HAWAII

v.WILLIAM F. ARMSTRONG

Supreme Court of the Territory of Hawai‘i.

Argued April 1, 1915.

Decided April 14, 1915.

EXCEPTIONS FROM CIRCUIT COURT, FIRST CIRCUIT. HON. C. W. ASHFORD, JUDGE.

Syllabus by the Court

A. was indicted charged with embezzling certain bonds which were in his possession by the consent and authority of a certain incorporated lodge, the owner, by converting them to his own use, unlawfully, wilfully, fraudulently and feloniously, and without the consent of such owner. The evidence showed that he was a trustee, and treasurer of the board of trustees, of said lodge, and as such received the bonds, sold them, and used the proceeds: Held that the verdict and judgment of conviction should not be set aside on the ground of variance between allegation and proof.

If an indictment under section 3934 R. L. 1915, charging embezzlement, be defective in that it fails to allege the fiduciary relation under which property charged to have been embezzled was received by the defendant, a question not decided, an objection for that reason should be made by demurrer or motion to quash, prior to plea; and, if not so made, such objection is waived.

Evidence, documentary and otherwise, showing that the alleged owner of property charged to have been embezzled is a domestic corporation, and organized as such, is admissible on the trial of one charged with embezzling the property of such corporation.

Where the indictment charged the embezzlement by defendant of certain bonds owned by one corporation, issued by another corporation, evidence that the latter was incorporated, issued the bonds named in the indictment and secured them by mortgage, is admissible as tending to show that the bonds embezzled were of value.

Evidence tending to establish the corpus delicti should be introduced before admitting declarations made by defendant inconsistent with the facts; and where checks received by the defendant as proceeds of securities embezzled were indorsed by him and cashed, his indorsements of such checks should be proven before they are admitted in evidence, but if admitted out of their regular order, and evidence of his indorsements is later introduced, the order of proof becomes immaterial.

Evidence showing the market value of property embezzled at the time of the alleged embezzlement is admissible.

On a trial on the charge of embezzlement, the complaint of a third party in a civil action claiming the property charged to have been embezzled, is not admissible, the same being an ex parte declaration which is not competent to prove the ownership of the embezzled property.

Section 3843 R. L. 1915, does not impinge upon the power and discretion vested in the court by section 81 of the Organic Act, is within the legislative power, and is not unconstitutional.J. W. Cathcart, City and County Attorney ( E. C. Peters with him on the brief) for the Territory.

I. M. Stainback, Attorney General, at the request of the court, filed a brief for the Territory.

G. A. Davis for defendant.

WATSON AND QUARLES, JJ., AND CIRCUIT JUDGE WHITNEY IN PLACE OF ROBERTSON, C.J., ABSENT.

OPINION OF THE COURT BY QUARLES, J.

The defendant, appellant here, was indicted charged with the crime of embezzlement committed at the city and county of Honolulu, Territory of Hawaii, tried before a jury, convicted, and sentenced to a term of two years imprisonment. The charging part of the indictment, after formal averments, is as follows: “* * * the said William F. Armstrong, being then and there entrusted with, and having the possession, control, custody and keeping of a thing of value, to wit, those certain bonds of the Olaa Sugar Company, Limited, numbered respectively No. 989, No. 990, and No. 991, each for the amount of one thousand dollars, of the total aggregate value of three thousand dollars, by the consent and authority of Honolulu Lodge No. 800 Loyal Order of Moose of the World, a corporation duly organized and existing under and by virtue of the laws of the Territory of Hawaii, the owner thereof, of the money and property of the said Honolulu Lodge No. 800 Loyal Order of Moose of the World, unlawfully, wilfully, fraudulently and feloniously did convert and dispose of the same to his own use and benefit, without the consent and against the will of the said owner thereof, and did then and thereby commit the crime of embezzlement, contrary to the form of the statute in such case made and provided.” The evidence shows that defendant was one of the trustees, and treasurer of the board of trustees, of said lodge, which was duly incorporated under the laws of the Territory of Hawaii, and, as such trustee, received the said described bonds, owned by the lodge, sold them, and converted the proceeds thereof to his own use. At the close of the trial counsel for defendant moved that he be discharged, and that the court instruct the jury to find for the defendant, on the ground of variance between allegation and proof, the indictment charging that he embezzled the bonds as an individual; while the proof tends to show that if such crime was committed, that it was committed by defendant in an official capacity. The motion to discharge, and the motion to instruct the jury to find for defendant, was each overruled. The first exception is to the action of the court in overruling said motions. The specific contention of the defendant is that in order to sustain a conviction under the evidence, the indictment should have charged that the defendant “as treasurer of the Board of Trustees of Honolulu Lodge No. 800 Loyal Order of Moose of the World” received said bonds and embezzled them. This contention is based upon the idea that the fiduciary relation of the defendant, whether direct or indirect, is an essential element of the crime charged against the defendant; and, being such, it is necessary to allege this fiduciary relation in accordance with the facts. It will be noted that the indictment substantially follows the statute (R. L. 1915, Sec. 3934), and this is usually held sufficient. The statute is as follows:

“If any person who is intrusted with, or has the possession, control, custody or keeping of a thing of value of another, by the consent or authority, direct or indirect, of such other, without the consent and against the will of the owner, fraudulently converts or disposes of the same, or attempts so to convert or dispose of the same, to his own use and benefit, or to the use and benefit of another than the owner or person entitled thereto, he is guilty of the embezzlement of such thing.”

The indictment in question unmistakably charges the defendant with having the possession, control, custody and keeping of the bonds in question, “by the consent and authority of Honolulu Lodge No. 800 Loyal Order of Moose of the World, * * * the owner thereof,” a conversion to his own use, and that such conversion was without the consent of the said owner. It would, undoubtedly, have been good pleading to have alleged that “as treasurer of the Board of Trustees of Honolulu Lodge No. 800 Loyal Order of Moose of the World” the defendant had possession, etc., and if our statute had been drawn in the usual phraseology in which we find similar statutes, i. e., “Every servant, agent, clerk,” etc., “entrusted with,” etc., the question would be different. In the case of De Leon v. Territory, 9 Ariz. 161, the indictment did not state the purpose with which the defendant was entrusted with the alleged embezzled property, for which reason it was contended the indictment was defective. The court, at page 168, said: “It is frequently the case that money or property is intrusted to a person generally for the use and benefit of another person, without any particular use or purpose being in mind at the time the property is intrusted to the agent or person who afterwards embezzles it. To adopt the argument of the appellant in the case at bar would render it impossible to convict an embezzler who might appropriate to his own use trust funds in every such instance, and minimize the beneficial effect of this statute by confining its operations to those cases only in which the money had been intrusted to him for some specific purpose, and that specific purpose be susceptible of proof.” The indictment charged, and the evidence established, that defendant was entrusted with the bonds by the consent and authority of the owner; and that he fraudulently converted the same to his own use without the consent of said owner. If we admit, which we do not, that the indictment was defective in that it did not allege the capacity in which the defendant received possession of the bonds, yet, such defect was apparent on the face of the indictment, and that question should have been raised by demurrer, or motion to quash before pleading to it. Failure to object to the indictment on the ground mentioned, prior to plea, waived such objection (R. L. 1915, Sec. 3808).

Exceptions 2, 15, 24 and 25 were disallowed by the trial court.

Exceptions 3 to 8 inclusive are to the instructions given by the trial court at the request of the prosecution, are general in their nature and suggest no error in either of the instructions. The brief on behalf of defendant does not point out any error in either of the instructions. However, we have carefully examined the instructions with reference to the evidence introduced before the jury, and find no error in them.

Exceptions 9 to 47 inclusive are to the action of the trial court in admitting and rejecting evidence. Owing to the nature of these exceptions we feel compelled to discuss them generally, grouping them into classes. One class challenged the admission of the articles of incorporation of Honolulu Lodge No. 800 Loyal Order of Moose of the World, and other evidence showing its corporate organization, on the ground that there was no evidence to show that the lodge was authorized to act, or chartered by the Supreme Lodge of the...