State v. Haskell , 33 Me. 127 ( 1851 )

Shepley, C. J.

— The accused was found to be guilty only of the offence alleged in the second count. That alleges, that he received at Waterville, in this county, of the Cashier of the Ticonic bank, sundry bank notes, checks, drafts, and other-evidences of debt to be by him carried for hire to Boston, and delivered to the Cashier of the Suffolk bank; and that he fraudulently converted the same to his own use, before they were so delivered. There is no allegation that he thus converted them at any place within this State.

The presiding Judge refused to instruct the jury, that they must acquit him, unless satisfied that the act of embezzlement was committed within this State. There is a motion for arrest of judgment.

The question presented by the refusal to instruct and by the motion is, whether by the statute, chap. 156, sect. 7, it is made an offence in this State to receive property within its jurisdiction, to be carried for hire and delivered to a person in another State, and to convert it fraudulently to his own use out of the State, before it has been delivered.

The offence of embezzlement and all other offences are punishable only in the State, within whose jurisdiction they have been committed. But the legislature of a State may make an act done within its jurisdiction, an offence by reason of other acts subsequently done -without its jurisdiction. And it may be just legislation, and necessary for the protection of the rights of its own citizens to do so. It may declare, if a person within the State shall receive property to be carried for hire, and delivered to a person out of the State, and shall fraudrdently convert the same to his own use, either within or without the State, that he shall be considered to have received it with a felonious intent, and that he shall be deemed to be guilty of larceny.

Whether the second count is sufficient, will depend upon the construction of the section upon which it was founded. That section does not declare, that a violation of its provisions shall constitute the offence of embezzlement. It does declare, that a person found to be guilty oí their violation shall be deemed to have committed larceny.

The act of fraudulent conversion, wherever committed, appears to have been regarded as evidence of an intention existing at the time of its reception to commit the crime, or to do the act declared, to amount to larceny.

The elements required by the statute to constitute the crime are, that the goods should be delivered to a person to be by him carried for hire, and to be delivered to another person, or at a certain place ; that the same should be by him embezzled or fraudulently converted to his own use, “before the same shall be delivered at the place or to the person where or to whom they were to be delivered.” There is no requirement that the fraudulent conversion should be made within the State; and it is not unreasonable to conclude, that it was the intention of the framers of the statute to make such a breach of trust and fraudulent conversion, wherever committed, an offence in the State, where the property was received and the trust assumed.

Such fraudulent breach of trust and conversion, although it would not by the common law amount to embezzlement or larceny in this State, the legislature might declare should be deemed to be larceny or any other well defined offence respecting property.

An appropriation by a carrier, of money thus received to his own use, might not constitute the crime, for a delivery of other money of equal value would show, that there was no intention to defraud or embezzle.

In this case the testimony does not show, that money only was fraudulently converted to the use of the accused. It is stated in the bill of exceptions, that on his return to Waterville, the accused delivered to the cashier of the bank “a portion of said checks, drafts, and acceptances, saying, that he had used the rest of the contents of said package.” The value or amount converted is stated, but that does not show, that the amount stated was not composed in part of checks or other evidences of debt. It appears from this testimony, that he did not account for the property within the State; and the instructions required that the jury should find, that he refused to account for it in this county.

When considering the sufficiency of the count, upon which he was found to be guilty, the facts alleged in it must be regarded as having been established by legal testimony.

Exceptions and motion overruled.