State v. Pratt

Sherwood, J.

— The defendant was indicted for embezzling certain money and bank notes of the value of $3,518, belonging to the McCormick Harvesting Machine Company, the denomination or description of which money and bank notes was alleged to be by the grand jurors unknown. The indictment contained but one count. The result of the trial was the defendant was convicted and his punishment assessed at three years imprisonment in the penitentiary. Whereupon he appealed to this court.

I. Our statute provides: “If any agent, clerk, apprentice, servant or collector of any private person, or of any copartnership, except persons so employed under the age of sixteen years ; or if any officer, agent, clerk, servant or collector of any incorporated company, or any person employed in any such capacity, shall embezzle or convert to his own use, or shall take, make way with or secrete, with intent to embezzle or convert to his own use without the assent of his master or employer, any money, goods, rights in action, or valuable security or effects whatsoever, belonging to any other person, which shall have come into his possession or under his care by virtue of such employment or office, he shall, upon conviction, be punished in the manner prescribed by law for stealing property of the kind or the value of the articles so embezzled, taken or secreted.” R. S. 1879, sec. 1320. Upon this section the indictment is bottomed.

And our statute further declares: “In every indictment in which it shall be necessary to make any averment as to any money or any note,, being or purporting to be made or issued by any bank incorporated by law, or made or .issued by virtue of any law of the United States, it shall be sufficient to describe such money or note simply as money, without specifying any particular coin or note ; and such allegation shall be sustained by proof of any amount of coin, or of any such note, although the particular species of coin of which such amount was composed, or the particular nature of such note shall not be proved ; and in cases of larceny, embezzlement, and obtaining money or such notes by false pretenses, by proof that the offender stole, embezzled or obtained any piece of coin, or any such note, or any portion of the value thereof, although such piece of coin or such note may have been delivered to him, in order that some part of the value thereof should be returned to the party delivering the same or to any other person, and such part shall have been returned accordingly.” R. S. 1879, sec. 1817.

The last-quoted section does away with many of the difficulties which formerly attached to prosecutions for the crime of embezzlement, by rendering it unnecessary to allege or to prove, in order to a conviction in any case, the identical money mentioned therein, by declaring it sufficient in allegation to describe the money or note “ simply as money, ” and sufficient in proof in cases of larceny or embezzlement, to prove that the offender stole, embezzled or obtained any piece of coin, or any such note, or any portion of the value thereof. Obeying this section, those authorities which announce and enforce a different theory of the law become valueless. And, as it was unnecessary to allege or to prove any speoiiic money taken, but only that the sum of money alleged in the indictment or any portion thereof was taken within the time limited by the statute, prior to indictment found, ail such objections as defendant urges on this score must therefore be ruled against him.

II. And as it is well settled law in this state, that even where there are several counts in an indictment all relating to the same transaction, the prosecution is not bound to elect the count on which it will proceed, but may adapt itself to the exigencies of the case, so also, the same principle governs here, where there is but one count, the gravamen of the charge being that the defendant within three years prior to the indictment found, embezzled a certain sum of money from the McCormick Harvesting Machine Company ; this charge being sustained by proving embezzlement by him as aforesaid of such sum or any portion thereof, as set forth in the instructions within the time limited by the statute; and this is especially true in the case at bar, as the evidence shows that the defendant was in the continuous receipt of money from his sub-agents, belonging to his principal, and only settled with his principal at stated periods, the embezzlement of different sums at different times thus tending to prove that in the aggregate, the defendant embezzled the sum charged in the indictment. But if it did not tend to prove the whole sum, it certainly tended to prove the embezzling of a portion thereof, and this was sufficient, under the statute. The foregoing views are fully supported by Revised Statutes 1879, section 1821, which obviates the necessity of specifying in any indictment the time at which an offense was committed, where time is not of the essence of the offense, and is also supported by the following authorities : 1 Bish. Crim. Proc., secs. 386, 397, 400 ; 1 Whart. Crim. Law [9 Ed.] secs. 1040, 1044 and cas. cit.; Brown v. State, 18 Ohio St. 496; Gravatt v. State, 25 Ohio St. 162 ; Campbell v. State, 35 Ohio St. 70.

Where the offense of embezzlement is committed by a trusted servant, agent, clerk, etc., and where, as here, the abstractions occurred daily or whenever cupidity prompts, it is an impossible thing to describe the identical money taken or the precise date upon which it was taken ; and it was this impossibility which occasioned the enactment of section 1817, supra, which was borrowed from an English statute, and for a similar reason, section 1821 was passed.

III. Criticism has been indulged as to the instructions given at the instance of the state; some of them are doubtless open to criticism, as will be presently seen. One of the chief objections to instructions one, two and three, is their use of this language : “ With the felonious intent to deprive the said McCormick Harvesting Machine Company, a corporation, then and there, etc., of the use thereof absolutely.” And upon this it is claimed that if embezzlement is to be likened to larceny, which is defined to be “the taking and removing, by trespass, of personal property which the trespasser knows to belong either generally or specially to another, with the intent to deprive such owner of his ownership therein” (2 Bish. Crim. Law, sec. 758), that then the instructions are faulty in not using the latter words italicized instead of those actually employed. There is some force in the criticism ; but it is not thought that the use of the words contained in the instructions as given is an error of such a nature as to authorize a new 'trial; for it may well be said that to deprive the owner of the “ absolute use ” of his money, etc., is tantamount to the deprivation of the money itself — and this is doubtless the view the jury took of it.

With reference to the question raised by the third instruction aforesaid, on the point of offering to restore the money embezzled, or as to the intention of the defendant at some future time to restore such money there can be no doubt entertained as to the propriety of the instruction on those points. The offers or the intentions of the defendant were incapable of relieving the act of its criminal nature. Commonwealth v. Tenney, 97 Mass. 50 ; Commonwealth v. Tuckerman, 10 Gray, 173; State v. Leicham, 41 Wis. 565.

In a former paragraph of this opinion, sufficient has been said to indicate our views as toan instruction asked on behalf of the defendant in regard to the necessity laid upon the state of proving that he had embezzled the identical money received from his employers.

IY. As to the order of the introduction of testimony in the lower court, that was a matter within the discretion of the trial court, as we have often decided.

Y. ' The only remaining point is as to the sixth instruction given on behalf of the state, and relating to the testimony of an accomplice. Just such an instruction as this was condemned in Chiagk’s case, 92 Mo. 395. But the circumstances of this case are so widely different from that one, the evidence of the defendant’a guilt is so overwhelming, that, even if the testimony of Post, the accomplice, were thrown out of consideration, the other testimony would be all-sufficient; and the identity of the defendant as being the perpetrator of the crime is so well established aliunde, that after some hesitation we have concluded that no prejudicial error was committed against the defendant by giving that instruction, and consequently affirm the judgment. All concur.