Wallis v. State
| Decision Date | 27 June 1891 |
| Citation | 16 S.W. 821 |
| Parties | WALLIS v. STATE. |
| Court | Arkansas Supreme Court |
Appeal from circuit court, Sebastian county; EDGAR E. BRYANT, Judge.
W. W. Wallis was convicted for embezzling moneys belonging to the school fund collected by him as attorney. He was an attorney at law, residing in Scott county, and was appointed by the attorney general to collect moneys arising from the sale of school lands therein. He collected $1,567, and transmitted to the state treasurer but $184. The proof showed that a portion of the money collected was in paper currency of the United States, and was either treasury notes, national bank notes, or gold or silver certificates, but failed to show which kind it was. No demand for settlement or payment was made on behalf of the state, and no specific act of conversion was shown in Scott county or elsewhere. It appears from the order impaneling the grand jury that one Parker had been selected by the jury commissioners, summoned by the sheriff, and was present in court. It further appeared that certain grand jurors were excused, and that 3 by-standers were called to sit as grand jurors, making 16 without him, but, including him, 17. Defendant's motion to quash the indictment on the ground that the grand jury was not legally constituted was overruled. The court refused instructions requested by defendant, the nature of which appears from the opinion. Defendant appeals.
John S. Little and Rogers & Read, for appellant. J. B. McDonough, Pros. Atty., and W. E. Atkinson, Atty. Gen., for the State.
1. When it appears by the record that a grand jury, made up of 16 persons named, was duly impaneled, it will be presumed, in the absence of a contrary showing, that persons not named in the panel, but who were selected by the jury commissioners and summoned by the sheriff to serve as grand-jurors, were excused from such service by the court; and it will be further presumed, unless the contrary appears, that the court excused such persons for good and sufficient reasons. We conclude that the motion to set aside the indictment was properly overruled.
2. The controlling question in the case arises upon the construction of section 1640, Mansf. Dig., which defines the crime of embezzlement by carriers and other bailees. The section referred to reads as follows: "If any carrier or other bailee shall embezzle, or convert to his own use, or make a way with, or secrete with intent to embezzle or to convert to his own use, any money, goods, rights in action, property, effects, or valuable security which shall have come to his possession, or have been delivered to him, or placed under his care or custody, such bailee, although he shall not break any trunk, package, box, or other thing in which he received them, shall be deemed guilty of larceny, and on conviction shall be punished as in cases of larceny." Does the statute cover the case of an attorney employed by the attorney general of the state, under the provisions of the act of March 31, 1885, to collect demands due to the school fund arising from the sale of sixteenth section lands? This act provides that attorneys employed under its provisions may retain as fees for collection 10 per cent. of the gross amount collected by them, and that "the remainder of said gross amount, after deducting their fees as above provided for, shall be by said attorneys transmitted without delay to the treasurer of the state." Acts 1885, p. 167, § 12. It is contended that, although the defendant may have converted moneys collected by him as an attorney employed under the provisions of this act, he is not indictable under the statute defining embezzlement. Three grounds are alleged in support of this contention, as follows: (1) That the statute applies only to carriers, and bailees of the same generic kind as carriers. (2) That upon the collection of the money it became the property of the defendant, and he became the debtor of the school-fund; in other words, that the relation of creditor and debtor, and not that of bailor and bailee, arose. (3) That, if the entire amount collected did not become the property of the defendant, he became the owner of an undivided one-tenth part thereof, and in respect thereto could not commit the crime of embezzlement. We will proceed to consider the sufficiency of the grounds relied upon in the order above stated.
First. It is insisted that the rule ejusdem generis restricts the meaning of the term "other bailees" to the generic class "carriers." The rule invoked is by no means of universal application, and its use is to carry out, not to defeat, the legislative intent. Where an act attempts to enumerate the several species of a generic class, and follows the enumeration by a general term more comprehensive than the class, the act will be restrained in its operation, because it is discerned that the legislature so intended; but where the detailed enumeration embraces all the things capable of being classed as of their kind, and general words are added, they must be applied to things of a different kind from those enumerated. For the rule does not require the entire rejection of general words, and is to be used in harmony with the elemental canon of construction that no word is to be treated as unmeaning if a construction can be found that will preserve it and make it effectual. End. Interp. St. §§ 23, 410-414. If the legislature, in the statute under consideration, had undertaken to detail the different kinds of carriers, and had followed the enumeration with the general words "and other bailees, "its purpose might reasonably be implied to only include such bailees as belonged to the class "carriers," and had been omitted in the enumeration; but having employed the generic term "carriers," and thus included all carriers of every kind, it must have intended, in adding the broader term, to embrace within the act something more than carriers; otherwise, the addition was without purpose, and the term added without meaning. The statute under consideration is a part of the Revised Statutes of 1838, and is a substantial transcript of a Missouri statute, which was construed by the supreme court of that state before its adoption in this state. The same rule was invoked there as here to restrain the operation of the general words; but the court said: "In our opinion, the legislature intended to make it larceny in all bailees to embezzle and convert goods, etc." Norton v. State, 4 Mo. 461. The court of appeals of that state — an intermediate tribunal, but one of great learning — subsequently approved this construction of the act. State v. Broderick, 7 Mo. App. 19. In a later case the supreme court of that state expressed a different view of the statute; but this was done without any discussion of the question, or even a reference to the earlier decisions. State v. Grisham, (Mo.) 2 S. W. Rep. 223. If it is to be presumed that the law-makers here, in adopting the act of a sister state, intended to adopt the construction put upon it by the highest courts of that state, the presumption would extend only to the construction given prior to its adoption here. End. Interp. St. § 371. Looking to its construction there preceding its adoption here, we find the rule ejusdem generis not applied, because it would destroy parts of the act. In Dotson's Case, decided in this court, the rule was not invoked; but the act was construed, and a broader meaning given it than the rule would admit. Dotson v. State, 51 Ark. 119, 10 S. W. Rep. 18. Upon consideration, we are constrained to adopt the construction first put upon the act in Missouri. That does not extend the natural import of the terms employed, or enlarge the scope of the act by construction, but accords to these terms their ordinary signification, and declines to restrict their operation.
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