Lead Opinion
From a judgment sentencing him to a term of six years in the penitentiary for embezzling as an agent four certificates of stock valued at $4,000, Henry appeals.
At the time of the transaction complained of Henry and one Wood-ruff were copartners, engaged in the banking and brokerage business in Washington under the name of Lewis Johnson & Co. One certificate for two shares of stock belonging to John Helmus, and three certificates, representing 18 shares owned by his mother, were delivered by Helmus to the copartnership at its banking house for the purpose of being sold for a price named. At the same time authority to transfer the title to the purchaser was given to the company. Shortly afterwards Henry hypothecated them for the use of the firm and never accounted to the owners for the certificates or their proceeds.
Henry and Woodruff were indicted in four counts. The first charged that they were agents of John Helmus, and that by virtue of their employment his certificate came into their possession and was wrongfully and feloniously converted by them to their own use and embezzled. In the second count they were charged with larceny after trust of the same certificate. The third count is like the first, and the fourth like the second, save that each deals with the certificates belonging to Mrs. Helmus. In other words, the first and third counts charge embezzlement, and the second and fourth, larceny after trust. Woodruff was not brought before the court and therefore meeds no further attention.
Flenry was tried and convicted on the first and third counts, and acquitted on the second and fourth. He appealed, and this court reversed the case and ordered a new trial. Upon the second trial he was again convicted on the first and third counts and sentenced as we have
Section 834 of the Code, on which counts 1 and 3 are based, provides :
“If any agent * * * of a private person * * * shall wrongfully convert to liis own use * * * anything of value which shall come into' his possession or under his cai’e by virtue of his employment or office, whether the thing so converted be the property of his master or employer or that of any other person, * * he shall be guilty of embezzlement. * * * ”
A motion for a directed verdict, on the theory that there was a variance between the charge in the indictment and the proof, made at the close of the government’s testimony, was overruled. At the bar Henry’s counsel stressed the contention that the proof did not show that he was the agent of the Helmuses before the certificates came into his hands, and that because of this an important element of the crime alleged was not established.
Many decisions have been brought to our attention defining in the abstract the elements of embezzlement and larceny after trust. Abstract principles are easy to find, but sometimes it is difficult to apply them to a given state of facts. Our attention has not been called to any authority which holds that under a state of facts similar to those in the case at bar an agency was not established, nor have we found any.
“There is no more reason why courts should allow themselves to be misled by mere names and shadows in the administration of justice in criminal than in civil cases.” Calkins v. State, 18 Ohio St. 366, 371, 98 Am. Dec. 121, 125.
Even if we admit that Henry had only the custody of the certificates, and that their possession was in the Helmuses, whose agent he was at the time Of the conversion, it would make no difference, because they were certainly “under his care.” Mr. Freeman, speaking upon the subject, in a note to Calkins v. State, supra, says:
“The phrase ‘under his care’ will cover property merely in his custody, and therefore, under such a statute, it is immaterial whether he receives possession of the property from a third person or from his master; for in either case the property is under his care, and if he converts it he is guilty of embezzlement.” 98 Am. Dec. 130 — citing People v. Dalton, 15 Wend. (N. Y.) 581, 583; People v. Hennessey, 15 Wend. (N. Y.) 147, 151; Ker v. People, 110 Ill. 630, 51 Am. Rep. 706; Territory v. Maxwell, 2 N. M. 250; Calkins v. State, supra; Gibbs v. State, 41 Tex. 491; State v. Wingo, 89 Ind. 207.
“Stop now, if you please. * * * If you will take your seat a moment, we will liave tills tiling straightened out right now. You asked me to charge that agency must have existed before these certificates were brought to Lewis Johnson & Co., and I refused to so charge. Now, you are arguing to the jury that that is the law, and you must not do it any further.”
Counsel protested that he had not had time to read the instructions which had been refused. To this the court responded that he would then give him time to read them, but counsel declined to do so, saying:
“1 have torn away those that were refused, and have only those that were given.”
It will be noticed that counsel did not deny that he was presenting to the jury a different view of the law from that which the court had adopted, but sought to excuse himself by saying that he had no intention of doing so. We think it was entirely proper for the court to prevent him from indulging further in that line of argument. Hyde v. United States, 35 App. D. C. 451.
As a part of the same colloquy, counsel asked the court to permit him to argue to the jury that Henry was not the agent of Mrs. Helmus. The court answered:
“The points to be argued are sufficiently intimated by the granted instructions, and you know perfectly well what they are.”
“I have always thought that one might argue the elements of crime charged in the indictment; and before undertaking to* do that, I will ask your honor whether I can argue that question now.”
The court again said:
“"Sou know perfectly well what the point is and what the court has held.”
There was nothing in the ruling of the court which required counsel to solicit this permission. He was simply forbidden to argue that there could be no conviction unless agency existed before the certificates were brought to Henry, because the court had ruled otherwise. As to the other matter, he was perfectly free to discuss it or not, as he thought proper.
At the conclusion of the court’s charge the subject was brought up again, counsel asserting that he had been denied the right to argue to the jury the question whether or not Henry was the agent of the Helmuses. This the court denied, saying:
“We will bave no misunderstanding about this. I tbink tbe record makes it perfectly clear. Will you please sit down? I have something to say which may be of importance hereafter, and it embarrasses me to have you stand while X state it.”
The court then related what had taken place substantially as we have already given it, and concluded with the statement that as to whether or not Henry was holding the stock as the agent of Mary or John Helmus:
“I never was called upon to say anything, and, of course, I had no objection to that being argued. Counsel may argue it noto if he wants to."
But counsel refused to avail himself of the permission. We think the court committed no error in anything it said or did in this connection.
_ It is urged that the manner in which the court handled the situation discredited counsel in the eyes of the jury and thereby prejudiced the cause of his client. If so, it was not the court’s fault. It could not have done less than it did, for surely no one will attempt to maintain that it should have allowed counsel to proceed in his argument to the jury on a theory of law in conflict with its ruling. In some jurisdictions, but not in this, the jurors in criminal cases are the judges of the law as well as of the fact. The language employed by the court was polite and considerate throughout and in every way proper. We do not think that what took place had any tendency to injuriously affect the interests of appellant. Jurors are intelligent, and understand that a defendant at the bar should not be prejudiced because his counsel’s course is not always approved by the court.
“I am not going to take the responsibility of taking the view of the law you present and letting this man out; but I shall let the Oourt of Appeals do-
*337 tíitle the law points you make. I am going to let the jury say whether the man did this thing and did it with the intent charged.”
Exception is taken to the phrase “letting this man out,” but that is precisely what defendant asked the court to do, though he used different language. No prejudice could have resulted.
_Earnestly counsel argued that the testimony of Helmus at this trial was different from that which he gave at the former trial, and that the failure of the court to give the instruction before the argument restricted him in his discussion of the matter before the jury, much to the disadvantage of his client. As we have said, we do not think he was limited in that respect. But is the testimony of Helmus at this trial materially different from what it was at the former one? Undoubtedly it is different in matters of detail. In essentials, however, it is the same. The point to which it is directed is whether or not Hen-T knew at the time the certificates were converted that they belonged o Helmus and his mother, and not to him or his partner. Helmus testified at this trial, as we have already pointed out, that he handed the certificates to Henry personally in the corridor of the bank. At the former trial he said:
“I left the securities at the window of the bookkeeper with Mr. Hammond, who in tarn handed them over to Mr. Henry,” who was “standing right back of Hammond. * * * Hammond immediately passed the certificates to Mr. Henry. * * ”* He [Henry] took the certificates, and the only thing I remember now is that they [Henry and Hammond] came around into the reception room, and there was a tal?; as to whether these two powers of attorney would cover the three certificates of stock belonging to mother.”
According to the testimony in both cases, the certificates reached Henry’s hands in circumstances which warranted, if they did not compel, the conclusion that lie knew they belonged to the Helmuses and knew the conditions under which they parted with them to him. The
“Now, I am asked to charge you upon another subject, which I do not feel like alluding to, unless requested, because you might infer from it what I think about some feature of the case, and I do not wish to give you the slightest impression as to what I think about the case, because, as a matter of fact, that is your province, and you are entirely competent to decide the ease without any information from the court or anybody else. It is a rule of law, and I am asked to tell it to you, that whenever a witness upon the stand before you willfully and intentionally testifies falsely as to any material matter, you have the right to disregard all his testimony, if you find that to be the fact. If a witness cannot be trusted to observe his oath in one particular, you have the right to say that you cannot believe or trust him in any other particular; but that implies that you find that he has intentionally testified falsely. It makes no difference who the witness is, of course; but do not infer from that that I give any intimation that I think anything of that sort has happened or has not happened in the case. I am simply stating a rule of law, because I am requested to do so. That is true in every case, because ail you have' to rely upon is the oath of the witness; but you must not get that mixed up with a man making an honest mistake as a witness, because he might be mistaken about one part and correct as to another part.”
This is a commendably fair, full, and correct statement of the law bearing on the point.
We have already seen that no error can be predicated on the failure to give a requested instruction, where the subject is completely covered, as here, by the court’s general charge. See cases supra. In addition it should be noticed how careful the learned justice was to say that he did not desire to convey to' the jury the notion that he had any view either one way or the other upon the question. In Corberth v. Great Atlantic & Pacific Tea Co., 36 App. D. C. 569, 575, Mr. Justice Robbi, speaking for this court, used the following language:
“Owing to the weight given to [by] the jury to any expression of opinion by the trial judge, the interests of justice require that he should ‘be careful to avoid any’remarks which might tend to convey the impression to the jury that he has an opinion with respect to the proof of any disputed fact that has been submitted to them for decision’ ” — and cited Washington Gaslight Co. v. Poore, 3 App. D. C. 139.
Evidence was offered tending to show that in the early fall of 1914 Henry had made an application for a loan of $100,000; that a young man then in the employ of Lewis Johnson & Co., desirous of becoming a member of the firm, made application to insurance companies to borrow $100,000 for the purpose of purchasing an interest in the firm; that his ability to procure the money depended upon certain conditions, which, so far as the record shows, were not fulfilled. The loans were not procured. It appears from a letter dated September 18, 1914, more than a month before the conversion of the certificates took place, that the applications had been abandoned. There is nothing which shows that Henry, if the money had been procured, would or could have utilized it for the purpose of redeeming the certificates, or that
“In other -words!, it is not the blameworthiness of the act or of the mind, but the result of the hazard, or the skill in the actor in playing the game, which decides its legal quality. Such a doctrine offers temptation to a thousand thousand custodians of trust funds, whose temptations are great enough at best; it encourages the reckless and unfortunate to commit crime, whereas the very purpose of the statute is to deter the tempted fiduciary from a breach of Ms trust and to protect society from the evils of a practice which has become well-nigh epidemic. If the law be given such a loose interpretation and be so feebly enforced, public faith and credit will be impaired, and the stability of the financial institutions of the state will be in jeopardy.”
Thus spoke the Supreme Court of Ohio in State v. Baxter, 89 Ohio St. 269, 278, 104 N. E. 337, 334 (52 L. R. A. [N. S.] 1019, Ann. Cas. 1916C, 60). See, also, National Rife & Accident Insurance Co. v. Gibson, 101 S. W. 895, 31 Ky. Law Rep. 101, 103, 12 L. R. A. (N. S.) 717; Slate v. Silva, 130 Mo. 440, 463, 32 S. W. 1007; Commonwealth v. Tuckerman, 76 Mass. (10 Gray) 173, 206, 207.
Some of the authorities cited by appellant on this point do not support his contention, and others hold that, “to make such a defense available, there must not only be the intent, but the ability, to redeem.” Blackburn v. Commonwealth (Ky.) 89 S. W. 160. There is no evidence of such ability on the part of the appellant. Anyhow, we prefer to follow the rule of the Baxter Case, and those supporting it, supra.
“I think, perhaps, counsel has gone far enough to indicate the importance of that; that is, the bearing of it.”
Neither statement is given. For aught that appears, the ruling of the court with respect to both was correct. We cannot assume that it was not (Cliquot’s Champagne, 3 Wall. 114, 140, 18 L. Ed. 116;
Other points have been raised by the appellant, but, after careful consideration, we find no merit in them. Appellant has had a fair trial throughout, and the judgment must be and it is affirmed.
Dissenting Opinion
(dissenting). The most material witness at the trial of this case was John Helmus, for he it was who made all the arrangements with the firm of Lewis Johnson & Co. concerning the shares of stock for the embezzlement of which Henry stands convicted. In the first trial of this case, when, presumably, the recollection of Mr. Helmus was fresher than several years later, at the second trial, he testified as follows:
“I left the securities at the window of the bookkeeper with Mr. Lammond, who in turn handed them over to Mr. Henry.”
The witness then was asked where Mr. Henry was standing at the time, and answered:
“Standing right back of Mr. Lammond.”
At the second trial this witness, testifying with reference to the same transaction, said:
*341 “When I handed over the securities to Mr. Henry it was in the corridor.
“Q. You handed over the securities personally to Mr. Henry, did you? A. Yes.
“Q. And that was in the corridor? A. Yes.
“Q. Whereabouts id the corridor were you standing? A. Just about in front of the bookkeeper’s window; Mr. Hammond’s window. * * *
“Q. Was Mr. Hammond in the corridor at the time? A. Yes.”
No explanation was vouchsafed by the witness for this material change in his testimony. Prior to the argument, counsel for Henry, acting well within his rights, requested the court to grant a number of instructions, among them the following, which counsel brought directly to the court’s attention:
“If you find that any witness,testified before you to a material fact in a way so different from his testimony given at a prior trial as that he could not honestly be mistaken about it, then you are justified in finding that Ibis witness willfuly testified falsely, and yon may disregard Ids testimony either in whole or in part.”
This request was refused, without any intimation from the court that it would be covered in the general charge. As the majority opinion discloses, when counsel for Henry was making his argument before the jury, the trial justice, conceiving that h.e was going beyond the granted instructions, sharply reprimanded him, saying:
“The points to be argued are sufficiently intimated by the granted instructions, and you know perfectly well what they are.”
Whatever may have been in the mind of the trial judge when he refused to grant this instruction, which was peculiarly applicable to the situation, the result was to deprive counsel of the right to bring sharply to the attention of the jury the fact that the most material witness in the case had changed his testimony on a material point, and hence that his credibility had been seriously affected. No reason whatever has been advanced as to> why this perfectly proper prayer should not have been granted, and none is apparent to me. That the trial justice made an apologetic effort to cover the point, after argument, is beside the question, for through the court’s abuse of discretion counsel had been deprived of the valuable right of bringing the matter to the attention of the jury. The acquittal of Henry at the first trial, under the two counts charging larceny after trust, may or may not have influenced the testimony of this witness at the second trial, tic may have been honestly mistaken in his testimony at the first trial, and right at the second trial; but those questions were for the jury, and not for the court.
A reading of the whole record compels the belief that Henry was not accorded that fair and impartial trial guaranteed him under' the laws of the land, and that, in the particular matter to which I have adverted, his rights were seriously invaded. I therefore am. constrained to dissent from the opinion and judgment of the court.