CHAPTER XLI. INDICTMENT. § 382. Sufficiency of the indictment, generally. 383. Sufficiency of the information. 384. Averment of relation existing. 385. Description of property converted. 387. Allegation of delivery of property. 2 § 382. Sufficiency of the indictment, generally.— (a) In general. In the Federal courts, an indictment under R. S., § 5209, against an officer of a national bank, for embezzlement, abstraction, or willful misappropriation of the bank's funds, must allege an intent to injure or defraud.' In California, an indictment charging that defendant, as administrator of P., received of K. $1,794, of which, in his final account, he accounted for but $1,700, and so fraudulently appropriated the sum of $94, of said P.'s estate, does not, without averring other inculpatory facts, charge embezzlement. In Georgia, an indictment charging a defendant with having received a certain amount of money to be applied for the use or benefit of his principal, with an allegation that on a certain day the defendant fraudulently converted a specific portion thereof to his own use, is not demurrable on the ground that it is too general, vague, and indefinite, or that it does not give the accused notice of what he is called on to answer. Proof which clearly and definitely shows such a fraudulent conversion as that charged would be admissible under such an indictment, and would sustain a conviction. But under an indictment making the charge of fraudulent conversion in general terms only, as above stated, evidence is not admissible to prove that the accused had reported his special payments as having been made to particular persons, and that such payments were not, 1 U. S. v. Voorhees, 9 Fed. Rep. 143. 2 People v. Gale, 77 Cal. 120. 3 in fact, made in the amounts reported, or that there were no such persons as those to whom the payments were reported to have been made. As making such a fraudulent report would be a crime, the indictment should contain a specific charge of such act, to authorize the admission of evidence thereof.' Such an indictment need not charge that the act was done without the consent of the owner or bailor, and to his injury, and without paying him on demand the full value thereof. These clauses of the statute, apply to other disposition of the goods than to the bailee's fraudulent conversion to his own use, and need only be charged and proved in such cases.' In Illinois, a count charging that the defendant, as the agent of the prosecutor, by virtue of his employment, received moneys of the prosecutor, stating the amount, which he did feloniously embezzle and fraudulently convert to his own use, with intent to steal the same, without the consent of the owner, is substantially good as a count for embezzlement, under the statute. And an indictment against a county treasurer, which charges that defendant on, etc.. then and there being county treasurer of said county, duly elected in pursuance of law to said office of public trust in said State, did feloniously and fraudulently embezzle a large sum of money, to-wit, the sum of $4,508.37, then and there in possession of such officer by virtue of his said office, contrary, etc., is sufficient even on motion to quash. Under the laws of Kentucky, by which each county has a right to dispose of vacant lands within its limits under the orders of the county court, an indictment against a county judge for embezzlement. in misappropriating the proceeds of vacant lands, collected by him as county judge, must charge that he refused to pay over the same in the manner and for the purpose required by law." In Louisiana, embezzlement is not an offense at common law, but was created by statute. "Embezzle" includes in its meaning appropriation to one's own use, and therefore the use of the single word "embezzle" in the indictment or 1 Hoyt v. State, 50 Ga. 313. 'Alderman v. State, 57 Ga. 367. 8 Lycan v. People, 107 Ill. 423. * Goodhue v. People, 94 Ill. 37. ⚫ Com. v. Lewis, 12 S. W. Rep. 266. 2 information contains within itself the charge that the defendant appropriated the money or property to his own use.' In Maine, an indictment under Rev. Stat. ch. 120, 87,-designating three classes of principals and abettors in embezzlement or breach of trust as guilty of larceny,-need only allege the acts and facts therein declared to be deemed larceny. In Minnesota, an indictment for embezzling money collected for a partnership in payment of a note made to it, properly accuses defendant of the crime of larceny.' In Mississippi, under Code, § 2790, which provides that, "if any officer or other person employed in any office within this State shall commit any fraud or embezzlement therein, he shall be imprisoned," etc., an indictment for embezzlement is sufficient, when it alleges in the first and second counts that defendant, the State treasurer, did willfully, fraudulently, and feloniously embezzle and convert to his own use money of the State intrusted to him, and in the third count that he willfully, fraudulently, and feloniously omitted to pay over to his successor in office certain money of the State remaining in his hands as such treasurer. And though the third count which charged defendant with failure to pay over to his successor money that came into his hands as State treasurer, alleged, further, that such money was in defendant's possession on the date when his successor qualified, this latter fact is immaterial, and the allegation imposes no duty on the State to prove it.* In North Carolina, a statute may make that which is in effect embezzlement, a misdemeanor; and an indictment under such a statute need not, therefore, aver that the criminal act was done "feloniously." Where an exception is contained in the same clause of the act creating the offense, the indictment must show, negatively, that the defendant does not come within the exception. Hence an indictment for embezzlement under Bat. Rev. ch. 32, § 16, must aver that the defendant is not an apprentice or within the age of eighteen years; and if 1 State v. Wolf, 34 La. An. 1153. 2 State v. Walton, 62 Me. 106. a State v. Butler, 26 Minn. 90. ▲ Hemingway v. State, 8 So. Rep. 317, State v. Hill, 91 N. C. 561. drawn under section 136 of same chapter, it must be averred that he is not an apprentice or under the age of sixteen years. The latter act makes the offense a felony, punishable as in case of larceny.' In Texas, an indictment which charges, with proper reference to time and place, that the defendant was the agent of A. B., the owner of a gelding worth fifty dollars; that defendant was in possession of the animal by virtue of his agency; that, being so in possession, he fraudulently converted it to his own use; and that this was done without the consent of the owner, with the fraudulent intent to deprive him of the value of the same, and to appropriate it to defendant's use, charges the offense of embezzlement." Under an ordinary indictment for theft, a conviction may be had for embezzlement, if the offense was committed since Rev. Crim. Code, art. 714, cl. 6, took effect;' but such provision is not retroactive.' (b) Time and place. In an indictment for embezzlement, or in one for aiding and counseling embezzlement, the day 1 State v. Lanier, 88 N. C. 658. Defendant was indicted under a statute which made it his duty to collect a State tax of $1 on every mortgage given to secure a sum in excess of $300, and rendered it an act of embezzlement to appropriate such tax to the collector's own use. Held, that the indictment is sufficient if it aver that the defendant, by virtue of his office, collected $1 as a tax due the State on a certain mortage deed, described in the indictment, which said sum was the property of the State, and thereafter converted the same to his own use. It need not aver, any more explicitly, that the mortgage was given to secure a greater sum than $300.-State v. Heaton, 81 N. C. 542. Code, § 1014, provides that, when any agent shall fraudulently convert to his own use any money or valuable security belonging to any other person, he shall be guilty of felony, and be punished as in cases of larceny. Section 1020 provides that, in indictments for embezzlement, it shall be sufficient to allege the embezzlement to be of money, without specifying any particular coin or valuable security. Section 1183 provides that it shall be sufficient if the indictment express the charge against defendant in an intelligible manner, and sufficient matter appears to enable the court to proceed to judgment. Held, that an indictment which charged a fiduciary relation between defendant and another; that defendant, by virtue thereof, received a note of the value of $5 on account of his employer; and that he fraudulently embezzled and made way with the note, was sufficient.-State v. Fain, 106 N. C. 760. Gibbs v. State, 41 Tex. 491. 3 Whitworth v. State, 11 Tex. App. 414. 4 Simco v. State, 8 Tex. App. 406. named for the commission of the offense is not material, and evidence may be given referring to any other day before the finding of the indictment.' So, as to place, an indictment under Utah Comp. Laws 1876 § 2068, which provides that "every officer of any county in this territory, * * * * * * charged with the receipt, safe-keeping, transfer or disbursement of public moneys, who * * * willfully omits or refuses to pay over to any officer or person authorized by law to receive the same any money received by him under any duty imposed by law so to pay over, is guilty of a felony," charging that defendant, as collector of B. county, Utah Territory, collected taxes which he willfully neglected and refused at all times to pay over, shows with sufficient certainty that the offense was committed in B. county. But under N. Y. Code, Crim. Proc. § 284, which prescribes among the requisites of an indictment that "it can be understood therefrom that the crime was committed at some place within the jurisdiction of the court," an indictment which alleges that on a day named, at the city of Rochester, in the county of Monroe, defendant, as trustee, received a sum of money, and that, "thereafter, and on the said 17th day of October, 1889, the said Alfred Horton did unlawfully and feloniously secrete, withhold, and appropriate to his own use the sum * * * * * of * good and lawful money," etc., does not lay the venue of the act which constitutes the crime charged.' (c) Following the language of the statute. As a general rule, an indictment for embezzlement is sufficient if it substantially follows the language of the statute. Thus, a charge, in the language of the statute, that defendant did "abstract" and convert, is sufficient, without the use of the 1 State v. Cushing, 11 R. I. 313. 2 People v. Rogerson, 4 Utah 231. 3 People v. Horton, 17 N. Y. Supp. 1. Defendant, a drummer, was indicted for embezzling samples. The samples were sent by the owner to the depot in G. to go by rail, and the owner there delivered to defendant the checks for the trunks containing them. Held, that the venue was properly laid in the county in which G. was located.-Cohen v. State, 20 Tex. App. 224. 4 State v. Adams, (Mo. Sup.) 18 S. W. Rep. 1000. |