Thomas v. Territory of Arizona

• Decision Date: 30 March 1905
• Docket Number: Criminal 196
• Citation: 9 Ariz. 180,80 P. 320
• Parties: BISSELL THOMAS, Defendant and Appellant, v. TERRITORY OF ARIZONA, Plaintiff and Respondent
• Court: Arizona Supreme Court

80 P. 320

9 Ariz. 180

BISSELL THOMAS, Defendant and Appellant, v. TERRITORY OF ARIZONA, Plaintiff and Respondent

Criminal No. 196

Supreme Court of Arizona

March 30, 1905

APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. Edward Kent Judge. Reversed.

The facts are stated in the opinion.

Bennett & Bennett, for Appellant.

A. C Baker, District Attorney, and Street & Alexander, for Respondent.

OPINION

DOAN J.

-- The appellant was indicted, in conjunction with one J. B Woodward, for embezzlement, alleged in the indictment to have been committed as follows, to wit: "The said J. B. Woodward and Bissell Thomas on or about the thirteenth day of July, A.D. 1904, and before the finding of this indictment, at the county of Maricopa, territory of Arizona, being then and there the agents of one H. W. McDonald, did by virtue of their employment receive and take into their possession and control a large sum of money, to wit, one thousand and fifty-two dollars and fifty cents, in money of the personal property of the said H. W. McDonald, their said principal, and afterwards, to wit, on the fifth day of October, 1904, at said county of Maricopa, territory of Arizona, did willfully, unlawfully, feloniously, and fraudulently convert and appropriate to their own use and benefit, and contrary to, and not in the due and lawful execution of, their said trust, the sum of eight hundred and sixty-seven dollars and forty cents in money, of the value of eight hundred and sixty-seven dollars and forty cents in money, of the personal property of the said H. W. McDonald out of and from the said one thousand and fifty-two dollars and fifty cents so received and taken into their possession and control by virtue of their said employment as aforesaid; and the said J. B. Woodward and the said Bissell Thomas then and there failed and refused to return and deliver to the said H. W. McDonald, their said principal, the said sum of eight hundred and sixty-seven dollars and forty cents on demand then and there made therefor by the said H. W. McDonald, contrary to the form, force, and effect of the statute in such cases made and provided, and against the peace and dignity of the territory of Arizona." Upon arraignment, the defendants severed, and the appellant herein demurred to the indictment. The demurrer was overruled by the court, a plea of not guilty was entered, and the case was tried to a jury, and upon a verdict of guilty a motion for a new trial was denied, and the defendant sentenced to imprisonment in the territorial prison. The ruling of the court upon the demurrer was excepted to, and an appeal was taken from the judgment of the court and the denial of the motion for a new trial.

The first assignment of error urges that the court erred in overruling the demurrer of the defendant Bissell Thomas to the indictment, upon the grounds, -- 1. That said indictment does not substantially conform to the requirements of sections 824, 825, and 826 of the Penal Code of the territory of Arizona; and 2. That the facts stated in said indictment do not constitute a public offense. Section 826 of the Penal Code requires that the indictment must be direct and certain as it regards the offense charged, and the particular circumstances of the offense charged, when they are necessary to constitute a complete offense. The language employed in the indictment shows that the indictment was drawn under section 462 of the Penal Code, and attempts to charge the defendant with embezzlement as agent of H. W. McDonald. The language of the statute is: "Every clerk agent or servant of any person, who fraudulently appropriates to his own use any property of another which has come into his control or care by virtue of such...