31 Wash. 111 | Wash. | 1903
The opinion of the court way delivered hy
— The information upon which the verdict in this case was rendered is as follows:
“Comes now R. J. Heergaard, prosecuting and county attorney for the county of Whitman, state of Washington, the superior court being in session and the grand jury of said county not being in session, and by this, his information, accuses Charles G-. Raby 'of the crime of larceny committed as follows, towit: That the said Charles G. Raby in the county of Whitman, in the state of Washington, on the 29th day of Uovember, 1901, was then and there duly elected, qualified and acting county auditor of said Whitman county, state of Washington, and had, been said county officer from and after the 7th day of January, 1901; that on the 18th day of October, 1901, in said county and state, he, the said Charles G. Raby, by virtue of his said position and office of county auditor, as aforesaid, did receive and take into his possession and have intrusted to him a certain county warrant for the sum and of the value of seventeen hundred and fifty-three dollars, which said county warrant was issued by order of the board of county commissioners of said WThitman county
“ ‘Ro. 2049. Colfax, Washington, Oct. 18, 1901.
“ ‘To the Treasurer of Whitman County, Washington:
“ ‘You are directed to pay to American Bridge Co., or order, seventeen hundred and fifty-three and Ro-100 dollars, ($1,753.00) out of the Road and Bridge Bund of Whitman county, Washington, for balance contract price on Palouse Bridge. If not paid when presented for payment this warrant shall bear interest thereafter at the rate of seven per cent per annum until called.
“ ‘Issued by order of the Board of County Commissioners. “ ‘C. G. Raby,
(Seal.) _ “ ‘County Auditor.
“ ‘By B. O. Williams, Deputy.’
“Indorsed on face:
“ ‘654.
“ ‘38753 Vouchers Treasurer’s Report Jan. 6, 1902.
“‘Paid Rov. 29, 1901, Whitman County,
“ ‘W. J. Windus, Treasurer.’
“Cut in warrant with perforating stamp:
“ ‘$1753.’
“Indorsed on back:
“ ‘American Bridge Co. American Bridge Co.’ By C. G. Raby, County Auditor.’
“Bor check:
“ ‘Check Ro. 9075 to C. G. Raby, Auditor.’
The same then and there being the property of the said American Bridge Company, a foreign corporation, then and there duly authorized to transact business in this state; and afterward, towit, on the 29th day of Rovember, 1901, in the said Whitman county, state of Washing
A demurrer was interposed to the information, which was overruled, the case proceeded to trial; the jury returned a verdict of “Guilty as charged,” and the defendant was sentenced to eight years in the penitentiary. Prom this judgment and sentence appeal was taken.
It is assigned that the court erred in overruling defendant’s demurrer to the information, for the reason that the essential element of the crime of embezzlement is the existence of a trust or some fiduciary relationship or confidence reposed; that the statute requires such relationship to be that of principal and agent, corporation and officer, .master and servant, beneficiary and trustee, or bailor and bailee, and that hence, unless the defendant was the agent, clerk, officer, or servant of the American Bridge Company, or was intrusted by the American Bridge Company with the warrant described in the information, there can be no conviction; and that the information does not allege any of these facts. This argument is not available to the appellant since the decision by this court of State v. Isensee, 12 Wash. 254 (40 Pac. 985), and State v. Downing, 15 Wash. 413 (46 Pac. 646). But, as an independent proposition, § 1119, Bal. Code, provides that:
“If any agent, clerk, officer, servant, or person to whom any money or other property shall be intrusted, with or without hire, shall fraudulently convert to his own use,*115 or shall take and secrete the same with intent fraudulently to convert the same to his own use, or shall fail to account to the person so intrusting it to him, he shall be deemed guilty of larceny, and on conviction thereof shall be imprisoned,” etc.
If the legislature had a right to enact such a law — and such right is not, and, we think, cannot be questioned— it would seem that there is no room for controversy. The language of the law is plain, simple, and comprehensive, •and the statement of facts furnished by the information is equally plain, and within the provisions of the law. By this information the defendant is informed that at the time of the alleged offense he was an officer to whom property was intrusted, and the property was plainly described. He is informed that he fraudulently and feloniously converted said property to his own use. If these allegations of. the information are true, the statutory crime has ibeen committed, and no amount of discussion can malee the proposition plainer. By virtue of his office, defendant became the legal custodian and bailee of the warrant hy operation of law. He therefore had the warrant rightfully in his custody, and also, by operation of law, held it as the agent of the owner. When he assumed the duties ■of the office, he assumed to act as agent for the owner, Tinder provisions of the law, and he is estopped from •denying such agency. If he is agent to receive the money for the owner, he is agent to deliver it to him. It would -certainly be a puerile law that would constitute a public ■officer an agent to receive money for one with whom the municipality is dealing, and allow him to deny the agency for the purpose of escaping punishment for embezzling such property. The objection that there was no value to the warrant until it was delivered, and that the ownership was not properly alleged, is equally untenable. The
There was no error committed by the court in the admission of testimony or in instructions given or refused. The defense was a purely technical one, which cannot obtain under the provisions of our Code, and under the uniform rulings of this court.
The judgment is affirmed.
Andebs, Mount and Hadley, JJ., concur.
Fullebton, C. J., not sitting.
