Terry v. State

• Decision Date: 28 May 1890
• Parties: TERRY v. STATE.
• Court: Washington Supreme Court

24 P. 447

1 Wash. 277

TERRY v. STATE.

Supreme Court of Washington

May 28, 1890

Error from district court, King county.

Ronald, Piles & Relfe, for plaintiff in error.

DUNBAR J.

The indictment under which the appellant was convicted of larceny was under section 835 of the Code, and, omitting the formal parts, was as follows: "The said J. E. Terry, on the 25th day of May, A. D. 1889, in the county of King, in the district aforesaid, then and there being the agent of one W. H. Gleason for sale of a certain horse, then and there the personal property of said W. H. Gleason, did then and there sell the said horse to one F. E. Scott for the sum and price of one hundred and ninety dollars, and did then and there, by virtue of said employment, receive from said F E. Scott as the purchase price of said horse, and as the personal property of said Gleason, the sum of one hundred and fifty dollars, lawful money of the United States, and the promissory note of said Scott for forty dollars, and did then and there, willfully, fraudulently, and feloniously, take and secrete the whole of said money, with the intent thereby to embezzle and fraudulently convert the same to his own use contrary to the form of the statute," etc.

Several points are raised by the appellant; but the one to which the court will address itself, as being decisive of the case, is "that the omission to charge in the indictment that the defendant was an agent for hire" is fatal. The court below held that the words "for hire" did not apply to "any officer, agent, clerk, or servant," but only to any one included in the word "person," and that the word "person," as used in that statute meant any person other than an officer, agent, clerk, or servant, and that the words "for hire" only applied to such other persons. This construction of section 835 as an independent section is not in harmony with the rule of ejusdem generis, that in the construction of statutes, contracts, and other instruments, where an enumeration of specific things is followed by a general word or phrase, the latter is held to refer to things of the same kind as those specified. But, outside of this rule of construction, the enactment of section 836, which must be construed in connection with section 835, by its terms included in the proviso, expressly covers cases of embezzlement by the same classes of persons mentioned in section 835, "without hire," showing conclusively...