State v. Scoggins , 85 Ark. 43 ( 1907 )

Wood, J.,

(after stating the facts.) Appellee was indicted under section 1837 of Kirby’s Digest, which is as follows:

“If any clerk, apprentice, servant, employee, agent or attornej'- of any private person, or of any co-partnership, except clerks, apprentices, servants and employees within the age of sixteen years, or any officer, clerk, servant, employee, agent or attorney of any incorporated company, or any person employed in any such capacity, shall embezzle, or convert to his own use, or. shall take, make away with or secrete, with intent to embezzle or convert to his own use, without the consent of his master or employer, any money, goods or rights in action, or any valuable security or effects whatsoever belonging to any other person, which shall have come to his possession or under his care or custody by virtue of such employment, office, agency or attorneyship, shall be deemed guilty of larceny, and on conviction shall be punished as in case of larceny.”

Appellee contends here that the indictment is insufficient because it does not allege that the funds came to the possession or was under the care or custody of the agent by virtue of the employment or agency. This, of course, is necessary, but the pleader need not use the exact words of the statute, provided other words conveying the same meaning are employed. Section 2241, Kirby’s Digest; Wood v. State, 47 Ark. 488; Richardson v. State, 77 Ark. 321; Sherrill v. State, 84 Ark. 470.

The indictment, after alleging the relation of appellee to the railway company as that of “agent,” says: “And having then and there in his custody and possession as such agent as aforesaid.” These words are equivalent to charging that the funds alleged to have been embezzled came into the custody and possession of appellee by virtue of such employment as agent, or by virtue of his agency. Words used in an indictment must be construed according" to their usual acceptation in common language. Section 2242, Kirby’s Digest. When we speak of one holding funds “as agent,” every one understands that the words “as agent” describe 'the relation in which, or by which, the funds are held. When these words, “as agent,” are used in this connection, they are not descriptio personae at all, but they tell how the funds are held. In the usual acceptation, the meaning can be nothing else than that appellee was in possession of the funds, and that such funds had come into his possession or under his care or custody by virtue of his employment as agent.

In United States v. Northway, 120 U. S. 327, the twelfth count of the indictment charges that the defendant, with proper allegations of time and place, “was then and there president and agent of a certain National Banking Association, * * * and the said Stephen A. Northway, as such president and agent, then and there had and received in and into his possession certain of the moneys and funds of said banking association, * * * and then and there being in the possession of said Stephen A. Northway, as such president and agent aforesaid, he the said Northway, then and there,” etc. The statute upon which the prosecution was grounded was as follows: “Every president, director, cashier, teller clerk, or agent, of any association, who embezzles, etc., any of the money, funds, credits of the association,” etc. The court said: “In respect to the counts for embezzlement, it is quite clear that the allegation is sufficient, as it distinctly alleges that the moneys and funds charged to have been embezzled were at the time in the possession of the defendant as president and agent. This necessarily means that they had come into his possession in his official character, so that he held them in trust for the use and benefit of the association. In respect to those funds, the charge against him is that he embezzled them by converting them to his own use. This, we think, fully and exactly describes the offense of embezzlement under the act by an officer and agent of the association.”

We are of the opinion that the indictment clearly sets forth the fiduciary relation or capacity of appellee to the railway company as that of “agent,” and alleges that he embezzled funds which 'he received and held by virtue of that agency. See Ritter v. State, 70 Ark. 472, and Fleener v. State, 58 Ark. 98, where indictments very similar were held good on demurrer.

The indictment is sufficient.

Reversed and remanded with directions to overrule the demurrer.