Wallis v. State

• Decision Date: 27 June 1891
• Citation: 16 S.W. 821,54 Ark. 611
• Parties: WALLIS v. STATE
• Court: Arkansas Supreme Court

16 S.W. 821

54 Ark. 611

WALLIS v. STATE

Supreme Court of Arkansas

June 27, 1891

APPEAL from Sebastian Circuit Court, Fort Smith District, EDGAR E BRYANT, Judge.

W. W Wallis, an attorney, was indicted in Scott county for embezzlement of $ 1567.56 collected by him by virtue of him employment by the Attorney General, under the act approved March 31, 1885, to collect claims and notes due the school fund. Upon his application a change of venue was taken to the circuit court of Sebastian county for the Fort Smith district. In the latter court a motion was made to quash the indictment because the record of the former court showed that Thomas Parker had been selected by the jury commissioners as a grand juror and summoned by the sheriff, but did not appear to have been excused, though the record showed that a grand jury of sixteen persons named, not including Parker, was duly empaneled. The motion was denied. A demurrer to the indictment, the grounds of which are stated in the opinion was overruled. Defendant was convicted and has appealed.

Judgment affirmed.

John S. Little and Rogers & Read for appellant.

1. The indictment should have been quashed for error in empaneling the grand jury. Mansf. Dig., sec. 3991-2. The record does not show that Thomas Parker was either empaneled or excused. 21 Ark. 128.

2. An attorney is not a bailee, within the provisions of sec. 1640, Mansf. Dig., which only applies to carriers and bailees of that class. Endl. Int. St., sec. 405, pp. 558, 568; Bish. St. Cr., sec. 245; 2 S.W. 223; 49 Mo. 559; 43 Texas, 404.

3. Under the terms of the contract appellant became a joint owner of the money collected to the extent of his commissions, and could not be guilty of embezzlement. Whart. Cr. Law, sec. 1054, 9th ed.; Acts 1885, p. 167, sec. 12; 22 Minn. 41; 11 Metc. (Mass.), 64; 30 Kan. 534.

4. Under his employment, when the funds were collected, the legal title vested in him, and he became debtor for the amount collected less his commissions. 2 Met. (Mass.), 343; 12 Cush., 112; 9 Met. (Mass.), 499; 125 Mass. 15; 32 Mich. 131; 56 Ind. 346; 53 Ind. 331; 3 How. (U. S.), 578; 1 Denio, 233; 7 Hill, 384.

5. A demand was necessary. 2 Ark. 402; 3 id., 82.

6. There is an utter failure of proof as to the character and kind of money; nor is it shown that it was converted in Scott county.

J. B. McDonough, Prosecuting Attorney, with whom is W. E. Atkinson, Attorney General, for appellee.

1. The record shows that Thomas Parker was excused. But if the record was silent, the presumption is that he was excused. 16 Ark. 43; 8 id., 374.

2. An attorney is a bailee, within the statute. 3 Ark. 82; People v. Converse, 42 N.W. Rep.; 51 Ark. 119; 82 Pa.St. 483; Rapalje & Law., Dict.; Bouvier, Dict.; 3 H. & C., 921; 3 E. & E., 501; 30 L. J., 99; 3 B. & Ad., 216; 1 C. C. (L. R.), 27; 1 Q. B. Div., 12; Endlich, Int. Stat., sec. 410; 3 McCord (S. C.), 306; 2 Strob. (S. C.), 474; 9 Tex. 521; 26 Oh. St., 196; Bish. Cr. Law, sec. 246; 118 Mass. 350; Endlich, Int. Stat., sec. 411; 9 C. P. (L. R.), 339; 8 Q. B. Div., 275; 51 L. J. M. C., 53; L. R., 9. Q. B., 440; 33 La. An., 253; Bish. St. Cr., sec. 246; 19 Me. 394; 44 Mo. 458; 69 Cal. 226; 8 Cox, C. C., 436; 8 Cal. 42; 19 Cal. 600; 71 id., 390; 33 La. An., 1161; 2 New Mex., 250; 21 Kan. 730 (534); 25 P. 616; 22 Kan. 170.

3. Appellant was not a tenant in common of the money collected. 15 N.E. 481-3; 45 Ohio St. 535; 26 N.E. 858; 48 N.W. 292; 24 P. 183; 74 Mich. 478.

4. The collection of the money, and the fact that he had the right to retain his commissions, do not make him a mere debtor to the State, nor discharge him from his duty as a bailee to remit the balance. 35 Ohio St. 70; 1 Leigh & C., 85; 36 Mich. 306; Russ. & R. C. C., 139; Car. & M., 525; 16 Russ. & R. C. C., 139; Russ. & R. C. C., 463; 3 Starkie, 63; 80 Mo. 358; 22 Kan. 200; 25 Minn. 490; 8 C. & P., 742.

4. No demand was necessary. 111 Ind. 289; 22 Kan. 211; 10 Gray, 173.

5. The proof was sufficient that the conversion took place in Scott county. 25 P. 130; 83 Ga. 171; Desty on Cr. Law, sec. 146c; 98 Am. Dec., 132-3-4.

OPINION

HEMINGWAY, J.

I. When it appears by the record that a grand jury made up of sixteen persons named was duly empaneled, 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.

II. 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 way with, or secrete with intent to embezzle, or 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 "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 State." Acts 1885, p. 167, sec. 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: 1st. That the statute applies only to carriers and bailees of the same generic kind as carriers; 2nd. 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; 3d. 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.

(1). It is insisted that the rule ejusdem generis restricts the meaning of the term "other bailee" to the generic class "carrier." 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. Int. Stat., secs. 23, 410-14. 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 include such bailees only 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, 90 Mo. 163, 2 S.W. 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. Int. Stat., sec. 371. Looking to its construction there preceding its...