34 App. D.C. 249 | D.C. Cir. | 1910
delivered the opinion of the Court:
1. The first assignment of error is that the offense shoAvn by the evidence, if an offense at all, is larceny, and not embezzlement, as charged in the indictment. To constitute larceny the
2. The appellant chiefly relies on the second assignment of error, which is that the court refused “to hold that, upon the proof, it appeared that the defendant was a member of a partnership whose property the money, alleged to have been embezzled, was; and that property of a partnership could not be the subject of embezzlement by one of the partners.”
Unincorporated associations of persons for social, educational, and charitable purposes, or for the mutual benefit and advancement of the interests of the associations in various ways, as may be provided in their several constitutions and by-laws, have always been recognized as laAvful, though there may be no statutory regulation of their organization and control. As such they are included in see. 834, supra, among those whose officers, agents,
It follows that in so far as the relation of partnership is involved the court did not err in refusing to take the view urged.
3. It is further contended that by reason of his membership of the unincorporated association, the appellant had an interest in the fund analogous to that of a member of a partnership, or such a property interest, at least, that he cannot be held guilty of the offense of embezzlement for its wrongful conversion.
This fund was accumulated, through payments of dues and in other ways, for the promotion of the general purposes of the association; each member being entitled to as much of the expected benefits as another. There appears to exist no power to compel a member to pay dues; but his membership would cease upon his failure to do so. An active member has no interest in the fund, which he could withdraw or assign, and when he retires is entitled to no distribution. The by-laws provide that there shall be a treasurer, into whose possession all moneys of the association shall be delivered when collected by the financial secretary or agent. And, when so received by the treasurer, they cannot be .paid out for any purpose except by
The appellant, being an active member and remaining one during his term of office, was elected treasurer, and the fund which he converted came into his possession by virtue of his office. Considering the objects and laws of the association, and the fact that the majority of the members in meeting assembled were vested with the absolute control and disposition of the funds in the treasury, it is difficult to perceive that the appellant had any definite interest therein in the nature of property. But, assuming that he had a property interest of some kind or another in the fund, we cannot assent to the proposition that he may not, for that reason, be held guilty of embezzlement, under sec. 834, for its wrongful conversion. A number of authorities have been cited in support of the proposition that, as one cannot commit larceny or embezzlement of his own property, so likewise he cannot be guilty of either offense if he have an interest, no matter how slight, in the property converted. Some of these involve the case of a member of an ordinary partnership, some, that of an agent who has a right to a commission payable from the fund. We have already held that the association was not a partnership, and it is hardly necessary to say that appellant was not an agent, with a right to a commission. Other cases cited, however, apply the same rule where the accused is a member of an unincorporated association merely. These are based upon statutes of their several jurisdictions defining embezzlement, and depend upon the construction given them. Some, if not all, of those statutes contain terms not found in sec. 834, which seem to have had weight in determining the construction adopted. It would serve no useful purpose to review the decisions referred to, or to compare the various statutes. It is sufficient to say that no reasonable construction of sec. 834 of the District Code warrants the proposition maintained. It makes one into whose possession property shall come by virtue of an office or employment, held of an unincorporated association, liable to conviction for embezzlement, “whether the thing so
Sec. 834, in terms, comprehends the officers of all unincorporated associations, without distinction, and declares the wrongful conversion of property coming into their possession by virtue of their office to constitute embezzlement; and it would be a reproach to the administration of the law to read into it an unreasonable and technical exception that would avoid its salutary operation in the case of those officers who are at the same time members of the association whose trust has been betrayed. Statutes of some other jurisdictions similar to, but not identical with, sec. 834, have been given a like construction, in the following well-considered cases: State v. Kusnick, 45 Ohio St. 535-541, 4 Am. St. Rep. 564, 15 N. E. 481; State v. Campbell, 59 Kan. 246-249, 52 Pac. 454; Laycock v. State, 136 Ind. 217, 36 N. E. 137.
The charge of the trial court was a correct statement of the law in application to the evidence, and the judgment will therefore be affirmed. Affirmed.