75 W. Va. 632 | W. Va. | 1915
The indictment on which defendant was found guilty, and by the judgment complained of adjudged to serve a term of two years imprisonment in the penitentiary, charges him with unlawfully and feloniously stealing, taking and carrying away, three rugs, of the value of thirty dollars, the goods, chattels and property of one B. B. Burns, against the peace and dignity of the State.
Our statute, section 19, chapter 145, serial section 5210, Code 1913, among other things, declares it to be larceny, for any agent, servant, etc., of any person to embezzle or fraudulently convert to his own use any effects or property of any other person which shall have come into his possession by virtue of his place or employment. In State v. Fraley, 71 W. Va. 100, we decided that an offense under this statute is sufficiently established by evidence showing that the agency or service related to but the single transaction of entrusting the property embezzled to defendant. And an indictment for larceny is supported by-proof of the embezzlement of the property alleged to have been stolen. State v. McClung, 35 W. Va. 280; Pitsnogle v. Com., 91 Va. 808; Shinn v. Com., 32 Grat. 899.
Defendant in his own behalf swore that his agreement with Burns was to take all three rugs at the same time, and clean and return them the next morning for the one stipulated price of three dollars; and that after removing the rugs to the sidewalk, not being able to .get a transfer he returned to the rugs on the sidewalk, and afterwards carried them -one by one to Womeldorff’s stable, and later in the evening returned to the stable and got one of the rugs on his shoulder and started up the alley towards his home or place of business, when he was immediately arrested by a policeman, to whom Womeldorff had given information of his suspicions that something whs wrong with defendant’s action, and was taken to police headquarters adjoining or near Womeldorff’s stable,
• The evidence of the State and of DeBerry shows conclusively that DeBerry was quite drunk, so much so -’that he Avas scarcely able to walk straight, and DeBerry swears that his proposals to sell the rugs Avere in jest, to use his oavu language, that he AA:as “just kidding”, and acting as a man in his condition AAras likely to act; that if he had Avanted to steal the rugs he had plenty of opportunities to do so, and Avould not have gone about the police station to accomplish his object; that he had no intention of selling the rugs, Avould not have sold them if his proposals had been accepted, but intended to perform his contract, and take the rugs back to the offices AA’here he got them the next morning. This is substantially all the evidence in the case.
The first point of error is that the allegata and probata do not agree, the allegation of the indictment being that the rugs alleged to haAre been stolen AA’ere the property of B. B. Burns, and the proof that they belonged to the íavo corporations, of AA'hich Burns Avas secretary and treasurer. But the proof is that at the time of the alleged offense the actual or constructive possession of the property av&s in Burns alleged to be the owner thereof. This is sufficient. Wherefore no variance. State v. Chambers, 22 W. Va. 779; State v. Heaton, 23 W. Va. 773.
The next point is that the court below erred in giving State’s instructions numbers 1 and 4, the only instructions given at the instance of the State. Number 1, was predicated on the theory that Burns had given DeBerry right to move only one of the rugs; number 4, based on defendant’s evidence, that he had been given the right to remove all three rugs. The first told the jury that if defendant moved the three rags and took and carried them away, and tried to sell them, they should find him guilty, and if of the value of more than twenty dollars, guilty of grand larceny. The fourth told the jury that if DeBerry was entrusted with the rugs to clean them .and for that purpose alone, and tried to sell them and exercised acts of ownership over them, though he did not sell them, he was guilty of embezzlement, and they should so find.'
Besides these objections to State’s instructions, it is very doubtful whether if otherwise good, they are justified by the evidence. To be guilty of embezzlement, one must “convert” to his own use the money or goods entrusted to his care. The statute uses the word “convert”. What will amount to such conversion? It will be noted that the time for defendant to return the rugs had not expired. They were not to be delivered until the next morning. That was his contract. He proposed to sell the rugs, but had not done so. He had stored them in Womeldorff’s stable, and this is the only evidence in any way tending to show conversion, or intent to deprive the owner of his property. See Penny v. State, 88 Ala. 105. Many definitions of conversion are found in the boobs. 2 Words & Phrases, 1562, et seq.; 1 Words & Phrases, (2nd Series) 1030, et seq. The most comprehensive of these definitions, and perhaps the most accurate, is found in 1 Bouvier’s Law Diet., (Rawle’s 3rd Revision) 668, and in Black’s Law Diet., (2nd ed.) 267, as follows: “An unauthorized assump
Error is also assigned in the refusal of the court to give defendant’s instructions numbered 1, 2, 4, .5, and 6. AVe have examined these instructions and are of opinion that they are bad and were properly rejected. With respect to the first and second, it was not necessary that defendant should have intended at the time of taking the rugs to deprive the owner of them, but if after obtaining them he conceived the purpose and intent to unlawfully appropriate them to his own use, and did convert them within the meaning of our statute, the crime was complete, although he may not have, succeeded in getting away with the goods. With respect to instruction number 4, it is not necessary in cases of embezzlement that defendant should have been guilty of trespass in removing personal property in the first instance, if after obtaining possession thereof lawfully he conceived the intent and purpose to deprive the owner thereof, and effected a conversion of the goods, his crime was complete. With respect to instructions numbers 5 and 6, they did not properly state the law relating to proof of ownership, already referred to, and were properly rejected.
For the errors noted we are of opinion to reverse the judgment, and to award defendant a new trial.
Reversed- and neiv trial awarded.