Territory of Arizona v. Munroe

• Decision Date: 30 March 1906
• Docket Number: Criminal 223
• Citation: 85 P. 651,10 Ariz. 53
• Parties: TERRITORY OF ARIZONA, Appellant, v. JAMES L. MONROE, Respondent
• Court: Arizona Supreme Court

85 P. 651

10 Ariz. 53

TERRITORY OF ARIZONA, Appellant, v. JAMES L. MONROE, Respondent

Criminal No. 223

Supreme Court of Arizona

March 30, 1906

APPEAL from a judgment of the District Court of the Fifth Judicial District in and for the County of Graham, Eugene A. Tucker Judge, sustaining a demurrer to the indictment. Judgment held error.

The facts are stated in the opinion.

E. S Clark, Attorney-General, and C. L. Rawlins, District Attorney, for Appellant.

The indictment was not invalid for the reason that accused was not designated as bailee, trustee, or lodger, as stated in paragraph 461 of the Penal Code of Arizona. Paragraph 461 of the Penal Code of Arizona being the same, word for word, as section 507 of the California Penal Code; the adoption of a statute from another state adopts with it the construction placed upon it by the supreme court of that state at the time of such adoption. Elias v. Territory, 9 Ariz. 1, 76 P. 605; Anderson v. Territory, 9 Ariz. 50, 76 P 636; Santa Cruz Co. v. Barnes, 9 Ariz. 42, 76 P 621. To sustain a conviction under this paragraph, three acts must be shown: 1. The trust relation; 2. The possession or control of the property by virtue of the trust; 3. The fraudulent appropriation of the property, not in the due and lawful execution of the trust. Territory v. Meyer, 3 Ariz. 199, 24 P. 183; Hinds v. Territory, 8 Ariz. 372, 76 P. 469. The crime of embezzlement being statutory, it is always within the power of the legislature to declare what acts shall constitute the crime. The statute under which this indictment was drawn is one which "fully, directly and expressly, without any uncertainty or ambiguity, sets forth all the elements necessary to constitute the offense." People v. Gordon, 133 Cal. 328, 85 Am. St. Rep. 174, 65 P. 746; People v. Tomlinson, 66 Cal. 344, 5 P. 509; People v. Mahlman, 82 Cal. 585, 23 P. 145; People v. Page, 116 Cal. 388, 48 P. 326; People v. Ward, 134 Cal. 301, 66 P. 372; United States v. Carll, 105 U.S. 611, 26 L.Ed. 1135; United States v. Northway, 120 U.S. 334, 30 L.Ed. 666, 7 S.Ct. 584; United States v. Gooding, 12 Wheat. 459, 6 L.Ed. 693. Such certainty only is required in the indictment as will notify the defendant of the nature of the offense charged and enable him to plead any judgment which may be rendered in the case as a bar to a subsequent prosecution for the same offense. 10 Ency. of Plead. & Prac., pp. 473, 481, and cases cited.

It is not necessary to aver that the owner or bailor has demanded possession of the property and had been refused. People v. Goodrich, 142 Cal. 216, 75 P. 796; Commonwealth v. Mead, 160 Mass. 319, 35 N.E. 1125; Commonwealth v. Hussey, 111 Mass. 432; Commonwealth v. Tuckerman, 10 Gray (Mass.) 173; Bartley v. State, 53 Neb. 310, 73 N.W. 744; Wallis v. State, 54 Ark. 611, 16 S.W. 821; People v. Carter, 122 Mich. 668, 81 N.W. 924; People v. Wyman, 102 Cal. 552, 36 P. 932; People v. Royce, 106 Cal. 173, 37 P. 630, 39 P. 524; Leonard v. State, 7 Tex. App. 417. An indictment for the embezzlement of money held by defendant as bailee, which alleges a fraudulent conversion of the money, is sufficient without alleging a demand for the return thereof. Commonwealth v. Mead, supra; Commonwealth v. Hussey, supra; Commonwealth v. Tuckerman, supra. It is the fraudulent and felonious conversion of the money or other property that constitutes the offense, and that may often be proven with or without a demand on the part of the territory. People v. Bidleman, 104 Cal. 608, 38 P. 502; People v. Royce, 106 Cal. 173, 37 P. 630, 39 P. 524; People v. Ward, 134 Cal. 301, 66 P. 372; Wharton on Criminal Law, sec. 1030.

It is not necessary to aver or allege that the owner or bailor had demanded possession or return of the property from the bailee, for the further reason that the demand of paragraph 463 is not a constituent part of the definition of the offense, but is a matter of defense and must be shown by the respondent. Territory v. Burns, 6 Mont. 74, 9 P. 432; United States v. Cook, 84 U.S. (17 Wall.) 168, 21 L.Ed. 538. In the following cases no demand was alleged in the indictment: Hinds v. Territory, 8 Ariz. 372, 76 P. 469; De Leon v. Territory, 9 Ariz. 161, 80 P. 348.

OPINION

CAMPBELL, J.

-- The defendant was indicted for the crime of embezzlement. A general demurrer to the indictment was sustained, and the attorney-general being of the opinion that error was committed to the prejudice of the territory, and that it is important to a correct and uniform administration of the criminal law that this court should decide the point of law involved, has brought this appeal under the provisions of section 1038 of the Penal Code. The indictment was drawn to charge an offense under section 461 of the Penal Code, which is as follows: "Every person intrusted with any property as bailee, tenant, or lodger, or with any power of attorney for the sale or transfer thereof, who fraudulently converts the same or the proceeds thereof to his own use, or secretes it or them with a fraudulent intent to convert it to his own use, is guilty of embezzlement." It was urged upon the hearing upon the demurrer that the indictment is defective for the reason that it does not designate in terms the accused as bailee, tenant, or lodger; but it sets out at length facts which made the accused a bailee, and while the pleader might safely have charged the offense in the language of the statute, the fact that he has used other words conveying the same meaning does not render the indictment bad. Hinds v. Territory, 8 Ariz. 372, 76 P. 469.

It was further urged that the indictment is defective for the reason that it does not allege that a demand was made for the return of the property alleged to have been...