Territory v. Hale

• Decision Date: 27 June 1905
• Parties: TERRITORY v. HALE.
• Court: New Mexico Supreme Court

81 P. 583

13 N.M. 181, 1905 -NMSC- 021

TERRITORY v. HALE.

Supreme Court of New Mexico

June 27, 1905

Syllabus by the Court.

Section 1125, Comp. Laws 1897, construed, and held to apply to embezzlements by others than public officials.

Under section 1125, Comp. Laws 1897, in an indictment for embezzlement of public moneys an allegation that the defendant "having then and there in his possession the sum of [a certain number of] dollars in money, a better description of the kinds and character of which is to the grand jurors unknown," is sufficient both as to description of the money and the value thereof.

There is no variance between an allegation of embezzlement of money and the proof where the proof shows that public funds were deposited in a bank on general deposit and the embezzlement was accomplished by means of drawing checks on such deposit.

The venue in embezzlement is properly laid in the county where the possession becomes adverse to the owner.

Appeal from District Court, San Miguel County; before Chief Justice William J. Mills.

Edward Hale was convicted of embezzlement, and appeals. Affirmed.

Long & Fort, for appellant.

George W. Prichard, Atty. Gen., for the Territory.

PARKER J.

1. The appellant was tried and convicted of embezzlement upon an indictment containing several counts and based upon section 1125 of the Compiled Laws of 1897, which is as follows "Sec. 1125. If any person, having in his possession any moneys belonging to this territory, or any county, precinct or city, or in which this territory, or any collector or treasurer of any precinct or county, or the treasurer or disbursing officer of this territory, or any other person holding an office under the laws of this territory, to whom is intrusted by virtue of his office, or shall hereafter be intrusted with the collection, safe keeping, receipt disbursement, or the transfer of any tax, revenue, fine or other money, shall convert to his own use, in any way or manner whatever any part of said money, or shall loan, with or without interest, any part of said money intrusted to his care as aforesaid, or willfully neglect or refuse to pay over said money, or any part thereof, according to the provisions of law, so that he shall not be able to meet the demands of any person lawfully demanding the same, whether such demand be made before or after the expiration of his office, he shall be deemed and adjudged to be guilty of an embezzlement." It is urged by appellant that this section applies only to officials who, by virtue of their respective offices, come into possession of public funds and embezzle them, and to them only when by reason of such embezzlement they are not able to meet the demands of any person lawfully demanding such funds. An inspection of the section readily demonstrates the error of the contention. Four classes of persons are named in the section, viz "any person," or "any collector or treasurer of any precinct or county," or "the treasurer or disbursing officer of this territory," or "any other person holding an office under the laws of this territory." If the Legislature intended to limit the scope of the section to officers, the first clause will be superfluous. The use of that clause in connection with the others demonstrates an intention to include persons not officers, and who in any way come into the possession of public funds and embezzle the same. Nor does the clause "so that he shall not be able to meet the demands of any person lawfully demanding the same," modify the first clause, for by reason of the clause which follows the modifying clause the latter clause can have no application to persons other than officers (whether it does in all cases apply even to them, we do not decide), and must be referred, reddenda singula singulis, to that part of the section only which includes officers.

2. The indictment in each of the several counts charges that the defendant "having then and there in his possession the sum of *** dollars in money, a better description of the kinds and character of which is to the grand jurors unknown," etc., the specific amount being stated in each instance. It is urged that this is an insufficient description of the subject of the embezzlement. In the first place, it may be said that ordinarily the specific name, denomination, and kind of each piece of money stolen or embezzled must be alleged in the indictment. 12 Ency. Pl. & Pr. 987; 2 Bish. Cr. Proc. §§ 703, 321; 1 McClain, Cr. Law, §§ 597, 652. A relaxation of this rule is recognized by reason of the inherent difficulty in most instances of giving a specific description of the several pieces of money stolen or embezzled, amounting often to impossibility. Therefore it is permissible to give the best description possible of the money, and to allege that a better description thereof is to the grand jurors unknown, as in fact it is permissible to do in regard to the other property or other circumstances identifying a given transaction, but not vital thereto, when in truth the grand jury can so report. 1 Bish. Cr. Proc. § 553; 2 Bish. Cr. Proc. § 321; 1 McClain, Cr. Law, § 652; Com. v. Sawtelle, 11 Cush, 142; Merwin v. People, 26 Mich. 298, 12 Am.Rep. 314; Fleener v. State, 58 Ark. 98, 23 S.W. 1; State v. Hoppe, 39 Iowa 468; State v. Hinckley, 4 Minn. 345 (Gil. 261); State v. McAnulty, 26 Kan. 553; Ter. v. Bell, 5 Mont. 562, 6 P. 60; Duval v. State, 63 Ala. 12. This has been done in this case. But there is no allegation of the value of the money embezzled. The statute fixing the punishment regulates the same according to the value of the property embezzled, and consequently the value of the money must in some way appear in the indictment and proof. If it appears in this case, it appears by reason of the use of the words "dollars, in money." The question, but arising under the postal laws of the United States, was before this court in U.S. v. Fuller, 5 N. M. 80, 20 P. 175. The indictment in that case was founded upon the clause of section 5467, Rev. St. U.S. [U. S. Comp. St. 1901, p. 3691], which condemns the embezzlement of any letter or packet containing "any other article of value," and alleged the letter to contain "eight hundred dollars," without further description or allegation of value. In answer to the contention of counsel for appellant in that case the court said: "If the packet had contained any other article to which the law fixes no certain value, then this would undoubtedly be true. For instance, a piece of jewelry. The law places no value on such article. Its value, if any, is regulated entirely by the usage of trade and the law of supply and demand, and such value should be laid in the indictment in the current money of the country, made by law the standard or unit of value. To charge that eight hundred dollars is of the value of eight hundred dollars would add no force or weight to the indictment. It would not make the charge stronger, nor would it give the defendant any more information of the nature and cause of the accusation against him than is contained in this indictment." The quotation, differing slightly from the printed report, is taken from the original opinion on file in this court. It is here announced, in effect, that the word "dollar" used in an indictment purports value, and obviates the necessity of such an allegation. It is further said, in effect, that alleging a given number of dollars is alleging the same number of dollars in value. That case differed from this in that there are no grades of the offense under the federal statutes, while under our statutes the offense has two grades according as the amount embezzled is less or more than a specified sum. Sections 1126, 1187, Comp. Laws 1897. But if the allegation of so many dollars is an allegation of the same number of dollars in value, the difference between the two cases is of no importance. We are compelled, therefore, to hold the indictment in this case sufficient in this particular, or depart from the holding in the Fuller Case. This we are not inclined to do. This view finds support in a few cases (State v. Alverson, 105 Iowa 152, 74 N.W. 770; Gady v. State, 83 Ala. 51, 3 So. 429; Warren v. State, 29 Tex. 369); but we recognize it to be a departure from the current of authority, at least in cases arising under state or territorial statutes (2 Bish. Cr. Proc.§§ 320, 713; Wharton, Crim. Pl. & Pr. §§ 213-218; Brown v. People, 173 Ill. 34, 50 N.E. 106; State v. Stimson, 24 N. J. Law, 9; Bork v. People, 16 Hun, 476; Reside v. State, 10 Tex.App. 675; Grant v. State, 35 Fla. 581, 17 So. 225, 48 Am.St.Rep. 263; State v. Thompson, 42 Ark. 517; People v. Donald, 48 Mich. 491, 12 N.W. 669; Stephens v. State, 53 N. J. Law, 245, 21 A. 1038). It may be said, however, that this rule in regard to allegation of value, founded in reason as it is, and inflexible so far as concerns all property except money, has little reason to support it in a country like ours, where all forms of money are by law and in fact of uniform value. If becomes a mere naked rule of law, serving no useful purpose, and affording persons charged with the larceny or embezzlement of money no additional safeguard against unjust conviction.

What has been said under this head is upon the theory that the same requirements exist under our statute as under the English statute of 39 Geo. 3, upon which the English cases much referred to by the cases in this country, were decided. 2 Bish. Cr. Law, § 321. It is to be observed, however, that the English statute made the offense larceny, and hence all the technical requirements of allegation in larceny were required. 2 Bish. Cr. Proc. §§ 319, 320. On the other hand, our statute creates a new statutory crime, not declared to be larceny, and hence no greater...