59 Kan. 61 | Kan. | 1898
Calvin Hayes was prosecuted by an information alleging that, in November, 1896, he was
A motion to quash the information for insufficiency of averments was overruled ; and the defendant was found guilty of embezzlement and sentenced to confinement in the State Penitentiary for a period of two years. The principal question presented upon his appeal is as to the sufficiency of the information. It is conceded that the information was drawn and the defendant prosecuted under the latter part of section 88 of the Crimes Act, which makes the neglect or refusal of an agent to pay over or deliver to his employer or employers, upon demand, money or property which has come into his possession by virtue of his employment, embezzlement.
On the part of the defendant, it is contended that
The sufficiency of the information is to be tested by the provisions-of the particular statute under which the defendant was prosecuted and convicted. He was charged, as we have seen, under the amendatory provision added to section 88 of the Crimes Act in 1873, and which was again modified in 1881. Laws 1873, ch. 83; Laws 1881, ch. 104. It in effect defines a new and distinct offense, and was aimed particularly at agents and attorneys who failed or refused to pay or deliver to their employers, on demand, money or property which came into their hands by reason of their employment. As will readily be seen, the matter of demand and refusal is an important element of the offense. The fact that the defendant may be indebted to Pelham, or did not promptly remit the amount due, does not constitute a crime; it is the failure or refusal to pay or deliver it over upon demand that is denounced by the statute ; and this being an essential ingredient of the offense, it was a necessary averment. There was. an allegation that an accounting was demanded, but none that the money due was demanded from the defendant. He might refuse to render an account or join in an adjustment of the credits and charges which should be
The information should have stated that $165.52, or some other sum, was due, after deducting reasonable or lawful fees, charges or commissions for the services of the defendant, and also that his employer or principal had not given him permission to use the money demanded. These are included in the statutory definition of the offense, and as a general rule it is safe for a pleader to follow the terms or language of the statute in defining the offense. If the reasonable charges or commissions for which no credit had been given, exceeded or equaled the amount demanded, .there would be no criminal liability; nor would there be if the employer had given permission to the agent to use the money for his own purposes.
The language used in the information is perhaps sufficient to show that permission to use the money was not given, as it is averred that what was done by the defendant was without the assent of his principal.
The other exception to liability, that the money or property charged to have been unlawfully retained was not lost by means beyond the control of the agent, might properly have been alleged, but, as it is a matter peculiarly within the knowledge of the agent, proof of the same could not easily have been made by the prosecution, and therefore the failure to aver the exception can hardly be regarded as a fatal defect.'
The absence, however, of necessary averments, above referred to, required the sustaining of the motion to quash, and now compels a reversal of the judgment rendered.