Wilbur v. Territory

• Decision Date: 01 February 1889
• Citation: 3 Wyo. 268,21 P. 698
• Parties: WILBUR v. TERRITORY
• Court: Wyoming Supreme Court

21 P. 698

3 Wyo. 268

WILBUR v. TERRITORY

Supreme Court of Wyoming

February 1, 1889

Error to district court.

Frank A. Wilbur brings error from a conviction of larceny as bailee. Affirmed.

Judgment affirmed.

E. S N. Morgan, for plaintiff in error.

Hugo Donzelmann, for the Territory.

SAUFLEY J.

OPINION

SAUFLEY, J.

The plaintiff in error, Frank A. Wilbur, was indicted and tried in the district court for Laramie county, on a charge of larceny as bailee, convicted, and sentenced for the term of 13 months. He assigned as ground for reversal a defect in the indictment, and error of the court in refusing and in giving instruction. The charging part of the indictment is as follows: "Do present and find that Frank Wilbur, on the 18th day of September, 1888, at the county aforesaid, being the bailee of one watch and chain of the value of $ 43, the goods, chattels, and personal property of , copartners doing business under the firm name and style of Zehner, Buechner & Co., did then and there feloniously and fraudulently take and convert the same to his own use, with the intent feloniously to steal, take, and carry away the same, contrary to the form of the statute," etc. The offense charged is statutory. The Wyoming criminal statutes provide ^[1] that, if any bailee of goods shall convert the same to his own use with intent to steal, he shall be punished in the same manner as if the original taking had been felonious. The indictment is defective in form, in this: that it fails to set forth the facts which constituted a bailment, nor does it allege either the character, purpose, or breach of the bailment. The charge that the defendant is a bailee of the goods stolen is but a conclusion. To constitute this offense, there must subsist--First, a relation of trust, either express or implied, between the party accused and the person who owns or controls the goods; second, there must be a conversion of the goods with the intent to steal them, --the concurrence of these two elements being necessary to complete the offense. It is clearly as necessary to plead the facts which constitute the one as it is to plead the facts which constitute the other. Just as in an indictment for embezzlement, facts should be alleged which show a fiduciary relation, and the particular circumstances which constitute the breach or the violation of the trust.

The defect, however, is one which, under the Criminal Code, is to be...