160 P. 382 | Or. | 1916
delivered the opinion of the court.
“That before the finding of this indictment, A., etc., being the agent or clerk of X., the said X., not being an apprentice, or under the age of eighteen years, embezzled, or fraudulently converted to his own use, money to about the amount of eighteen hundred dollars, and, a bill of exchange to about the amount of eighteen hundred dollars, which came into his possession by virtue of his employment, against the peace,” etc.
The indictment here substantially follows the form quoted, leaving out the allegation “not being an apprentice or under the age of eighteen years,” which seems to have been a statutory exception in the State of Alabama, from which state the form given by Mr. Bishop was adopted.
“Feloniously took and carried away a gold watch (or as the case may be), the personal property of C. D. * * of the value of more than $35.”
The word “dollars” means money in the form of. the lawful currency of the United States: United States v. Van Auken, 96 U. S. 366 (24 L. Ed. 852). The word
“But there is no allegation of the value of the money embezzled. The statute fixing the punishment regulates the same according to the value of the property embezzled, and, consequently, the value of the money must in some way appear in the indictment and proof. If it appears in this case, it appears by reason of the use of the words, ‘dollars, in money.’ The question, but arising under the postal laws of the United States, was before this court in United States v. Fuller, 5 N. M. 80 (20 Pac. 175). The indictment in that case was founded upon the clause of Section 5467, Rev. Stats. U. S., which condemns the embezzlement of any letter or packet containing ‘any other article of value,’ and alleged the letter to contain ‘eight hundred dollars,’ without further description or allegation of value. In answer to the contention
In the case last mentioned an officer was indicted for the embezzlement of public funds, in which cases some of the courts seem to hold that less particularity is required in describing the kind and value of the money converted than in those where the victim was a private individual; hut in a case like the present it is difficult to see why a cestui que trust should be in any better position to know what particular description of coins or money his trustee had in his hands than the general public has of knowing the same fact when the money is received and embezzled by a public officer. The case of Territory v. Hale, 13 N. M. 181, 186 (81 Pac. 583, 13 Ann. Cas. 551, 584), mention the distinction only to show that it is immaterial, and in most of the cases cited above the victim was a private person.
Many cases hold the contrary view following the common-law rule, which has long been done away with in England by statute, and, as above shown, discredited by the latter authorities in this country as obsolete and having no foundation in reason.
Reversed and Remanded.