27 App. D.C. 263 | D.C. Cir. | 1906
delivered the opinion of the Court:
This is an appeal from a judgment of the supreme court of the District of Columbia holding a criminal court. The judgment was upon a verdict of guilty after trial upon the indictment herein considered.
John L. O’Brien, the appellant, was indicted for embezzlement under section 834 of the Code of the District of Columbia. (31 Stat. at L. 1325, chap. 854.) The indictment contained eight counts identical in form in every respect, except that each count charged the embezzlement of a different sum of money. The first count charged that on a certain day John L. O’Brien was a salesman and collector in the employment of a certain Frank Hume, and that on the day named he had in his possession a sum of money stated, belonging to said Hume, which money, being of the value stated, had come into the possession of O’Brien by virtue of such employment, and he, having it in his possession and under his care, “did then and there, and while he was such clerk as aforesaid, wrongfully convert the same to his own use, and fraudulently take, make away with, and secrete the same with intent to convert the same to his own use, and did thereby then and there embezzle the same,” against the form of the statute, etc. This statute, section 834 of the Code, is: “Embezzlement by agent, attorney, clerk, or servant. If
The appellant in the court below filed a motion to strike out the counts, and later a demurrer to the indictment. The motion and demurrer were overruled, as was also a motion to quash, later filed. Upon the trial, the defendant was tried and found guilty upon six counts of the indictment, and thereafter a motion in arrest of judgment was entered and overruled by the court.
Nine assignments of error are urged. All of them, except the 4th, 5th, and 6th, are considered together because they involve the construction of section 834, the indictment thereunder, and the instructions of the court based upon this statute and indictment.
1. Chief Justice Shepard, for the court, in Gassenheimer v. United States, 26 App. D. C. 432, has at this term said: “Section 834, as stated in appellant’s brief, ‘plainly describes two classes of acts, either one of which constitutes embezzlement; the first being the unlawful conversion to his own use, by the accused, of the property which has come into his possession by virtue of his employment, and the second being the fraudulently taking, making away with, or secreting with the intent to convert such property to his own use.’ ”
The offense is single, namely, embezzlement, which the statute says may be committed by either of two methods or ways. This count, which charges that the embezzlement was committed by means of both methods, is not bad for duplicity. A conviction under this count will be sustained by proof that the ac
Mr. Bishop says a statute often makes punishable doing one thing or another. A person who in one transaction does both violates the statute but once, and incurs its penalty. If he does but one thing he violates the statute equally. Therefore, the indictment on such a statute may allege, in a single count, that the defendant did both of the forbidden things, by “employing the conjunction ‘and’ where the statute has ‘or,’ and it will not be double, and it will be established at the trial by proof of any one of them.” 1 Bishop, New Crim. Proc. § 436.
And again he says: “Some single offenses are of a nature to be committed by many means, or in one or another of several varying ways. Thereupon, a count is not double which charges as many means as the pleader chooses, if not repugnant; and, at the trial, it will be established by proof of its commission by any one of them.” 1 Bishop, New Crim. Proc. § 434.
And again: “If a statute makes criminal the doing of this, or that, or that, mentioning several things disjunctively, there is but one offense, which may be committed in different ways; and in most instances all may be charged in a single connt. Bnt the conjunctive ‘and’ must ordinarily, in the indictment; take the place of ‘or’ in the statute, else it will be ill as being uncertain. A proof of the offense in any one of the ways will sustain the allegation.” 1 Bishop, New Crim. Proc. § 586; State v. Hodges, 45 Kan. 393, 26 Pac. 676; Tompkins v. State, 4 Tex. App. 161; State v. Smith, 61 Me. 388.
In the indictment we are now considering, the offense charged is embezzlement. We repeat, it is single. Under the statute (Code, § 834), if the appellant should wrongfully convert to his own use, or fraudulently take and secrete, his employer’s money with intent to convert the same to his own use, he would embezzle the same. Both methods of embezzling are alleged in the indictment with the conjunctive “and,” whereupon, if one
In Crain v. United States, 162 U. S. 625, 635, 40 L. ed.. 1097, 1099, 16 Sup. Ct. Rep. 952, the Supreme Court discusses several cases in which several offenses were charged in one count, and yet were not bad for duplicity; and the court proceeds: “We are of opinion that the objection to the second count upon the ground of duplicity was properly overruled. * * * The statute was directed against certain defined modes for accomplishing a general object, and declared that the doing of either one of several specified things, each having reference to that object, should be punished by imprisonment. * * * We perceive no sound reason why the doing of the prohibited thing, in each and all of the prohibited modes, may not be charged in one count, so that there may be a verdict of guilty upon proof that the accused had done any one of the things constituting a substantive crime under the statute. And this is a view altogether favorable to an accused, who pleads-not guilty to the charge contained in a single count; for a judgment on a general verdict of guilty upon that count will be a bar to any further prosecution in respect of any of the matters embraced by it.”
We are of opinion, therefore, that the indictment in this case correctly charges embezzlement under section 834 of the Code, and the learned court below properly overruled the appellant’s demurrer, and also his motion to quash the indictment.
The appellant insists that the court below erred in refusing to instruct the jury that to convict the appellant it must find that Hume’s money was wrongfully converted by the defendant to his own use “with the intent to defraud Hume;” and that the court erred in instructing the jury that to convict the appellant it must believe, respecting Hume’s money in his possession, “that he wrongfully converted that money to his own use.” We agree that the evil intent is an element of every crime, which
Of course “the evil intent must be joined in averment to an act which, being in its nature innocent or indifferent, is by such intent made criminal. But an act in nature evil is prima facie evil also in intent; so that this intent need not be alleged, unless the law has made it affirmatively or descriptively an element in the offense.” 1 Bishop, New Crim. Proc. § 524.
The section on which this indictment was based illustrates •each of the three statements in Mr. Bishop’s summary. The appellant could take, make away with, or secrete, his employer’s money, and the nature of the act might be at least indifferent. Therefore, the statute says he must “fraudulently take, etc., with intent to convert to his own use.” Such intent makes the act criminal. But, should the appellant wrongfully convert “to his own use” his employer’s money, this act, in its nature, is evil, and prima facie the intent also is evil. If he wrongfully converted to his own use his employer’s money the evil intent need not be further alleged. If the statute had added the superfluous intent, the statute would have made it an element of the offense; in which case the indictment must have alleged it, and the court below’ must have expressly charged it. In the case before us it was not necessary to specially charge an intent to defraud Hume, because the case of the government was pressed, not upon the second method, but upon the first method •of embezzling, and conviction was asked because the appellant had wrongfully converted to his own use his employer’s money. To wrongfully convert such money is an act in its nature evil, and the statement of the act itself imports the evil intent. The wrongful conversion constitutes the offense. Stephen’s Digest Crim. Law, p. 254, note 4. Wrongful acts knowingly committed cannot be excused on the ground of innocent intent. The
The cases in New Jersey and Massachusetts, relied on by the appellant, are each cases in which the statute required the intent to defraud the employer, in the one case, and the intent to fraudulently convert to his own use, in the other; to be alleged. See Com. v. Hays, 14 Gray, 62, 74 Am. Dec. 662; State v. Lyon, 45 N. J. L. 274.
In State v. Smith, supra, wherein a number of independent substantive offenses were included in one count, and that count was rightly held bad, the court said that it is not so where the several acts mentioned in the statute are but so many modes of describing one and the same offense, that offense being established by proof of either of the modes.
In State v. Butter, 21 S. C. 353, the breach-of-trust act under which the defendant was indicted was held by the court to be “the same in all of its features as common-law larceny.” Of course, in such a case the felonious intent must be alleged and proved. The other authorities cited by the appellant’s counsel are not more persuasive than these.
2. The 4th, 5th, and 6th assignments of error relate to the admission of evidence to which the appellant excepted. The bill of exceptions is so defective that it is quite difficult to understand what occurred at the trial. Among the other witnesses the government produced Mary Horrigan and five others, who each testified that they knew the appellant, that he was a salesman and collector for Frank Hume, and that each of them had paid the defendant, for Hume, amounts named in the indictment, and each received from the defendant a receipted statement showing such payment, which statements were introduced in evidence, and identified as being in the handwriting of the appellant.
The government then produced Charles Schaaf, who testified that he is a bookkeeper in Hume’s employment, and that for some years prior to October 28, 1902, when appellant was discharged, he was employed by Hume as salesman and collector.
Schaaf further testified that each month he would make out and deliver to the defendant statements showing balances due Hume by each of these customers, and the witness produced a ledger kept by him as part of his duty as bookkeeper. The entries in the book were all in his own handwriting, and he monthly “drew off” from said ledger statements showing the state of the accounts of each of the customers of Hume from whom it was the defendant’s duty to collect. When he completed a monthly statement he would add up the items of that statement, put the total at the bottom of the statement, and would give the statement to the appellant as collector, at the same time entering the total of the monthly statement thus given to the collector in lead pencil upon the ledger account of the particular customer. He always entered the pencil statement of the total when he delivered the statement with such total to the appellant for collection. He then read from the pages of the ledger Avhich contained the accounts of Mary Horrigan and the five other witnesses the lead pencil totals of the monthly statements of amounts due by each of those Avitnesses, which were the same totals he had put upon the monthly statement he had at the same time delivered to the appellant as collector.
The appellant’s counsel admitted that the written statements made by the witness and given to the defendant, to collect the amounts thereof from the customers, would be admissible, but objected that the pencil entries of the same amounts at the same time, made in the ledger by the witness, cordd not be admitted against the appellant. The court overruled the objection, and admitted such pencil entries of the totals. Noav the lead-pencil entries Avere original entries made by the bookkeeper, Schaaf.
We take the meager bill of exceptions to mean that Sehaaf, who stated that he bad given to the appellant, as collector, Mary Horrigan’s account with the total at the bottom thereof, and that at the same time he gave the statement to the appellant be put the total in pencil on the page in bis ledger where appeared Mary Horrigan’s account for that month, was enabled, when refreshed by this pencil entry produced, to testify, and that be did testify, that the statements he gave the collector for that
We fail to appreciate the objection made by the appellant’s counsel to this evidence. It is admitted that the original statement delivered by Schaaf to the appellant would be admissible; it is denied that Schaaf’s pencil entry of the total of each of said statements was admissible. Underhill, Crim. Ev. § 42, says that the rule requiring notice to produce a writing known to be in the possession of the opposite party before secondary evidence of its contents can be received is qualified in a criminal case.
“This rule is applicable to criminal prosecutions, with the qualification that, as the State has no power to compel the production of a writing in the rightful possession of the defendant, the notice to him is nugatory, and may perhaps, under some circumstances, be dispensed with.”
In McGinnis v. State, 24 Ind. 506, the court says: “We are satisfied that in this country the current rule of decisions in prosecutions for larceny is in favor of admitting parol evidence of a written instrument which is the subject of the prosecution, and is in the possession of the prisoner, without first giving notice to produce it.”
Apart from this view, the entries were contemporaneous writings made hv the witness, and were competent to refresh his memory when endeavoring to inform the jury what amount for a particular month was the total of the statement given by Schaaf to the appellant to collect from each of the half dozen witnesses who testified, that for the particular month they had paid the appellant, as collector, specific amounts. We thus dispose of the fourth assignment of error.
In our opinion, when each customer testified to payments made to the appellant as collector for Hume, and the appellant failed to charge himself with such payment on the “credit book,” and, in respect numerous creditors during a long period of time, frequently omitted to charge himself on the “credit book,” with like moneys; and the pencil entries proved what the appellant should have collected from each customer, — there was GAÚdence that the appellant had Avrongfully converted such moneys, or some of them, to his own use while in Hmne’s employment. As Mr. Stephens says, the inference that a prisoner has embezzled property by fraudulently converting it to his own use may be draAvn from the fact that he has not paid the money in due course to the owner, or from the fact that he has not accounted for the money which he has received. Stephen’s Digest Crim. Law, art. 312.
We are convinced, therefore, that the 5th and 6th assignments of error do not show reversible error. What we have said in