91 Me. 107 | Me. | 1897
Indictment under the act of 1893, c. 241, for larceny by embezzling the goods of another. The indictment in substance charges -that the defendant “ did receive and take into his possession certain money ” etc., delivered to him by one Stewart which the defendant “ unlawfully and feloniously did embezzle and fraudulently convert to his own use, the same being the subject of larceny, and so did feloniously steal, take and carry away the same, contra pacem, etc.
The defendant was found guilty, and moves arrest of judgment because the indictment does not charge the receipt of the money, etc., in any fiduciary relation, or upon any trust and confidence.
The Attorney for the State contends that such averments are unnecessary under the statute that inhibits, as larceny, the embezzlement of money, goods or property, which may be the subject of larceny, delivered to the defendant.
The act is as follows:
“Whoever embezzles, or fraudulently converts to his own use, or secretes with intent to embezzle or fraudulently convert to his own use, money, goods or property delivered to him, or any part thereof, which may be the 'subject of larceny, shall be deemed guilty of larceny.”
The purpose of the statute is to create a peculiar species of larceny, where the felonious taking is wanting; and all authorities
The statute in question was copied verbatim from Massachusetts Pub. Stat. c. 203, § 37. It was first enacted there in 1857, c. 233, and has been in force ever since. It has many times been construed by the Massachusetts court, and it is fair to presume that its construction was intended by our legislature when it was enacted here. To supply the defect of a prior Massachusetts statute, that did not reach the fraudulent conversion of a mere naked deposit of money for safe keeping, the present statute was enacted. Commonwealth v. Hays, 14 Gray, 62. In that case it is said that these prior statutes were intended to reach the fraudulent taking of money by persons to whom it had been intrusted by their employers and others on trust and confidence where no conviction for larceny could be had for want of taking or asportation, an essential element in that crime, and that to such persons only the statutes apply. Commonwealth v. Stearns, 2 Met. 343; Commonwealth v. Libbey, 11 Met. 64; Commonwealth v. Williams, 3 Gray, 461. In the same case it is further said that the present statute was “ intended to embrace cases where property had been designedly delivered to a person as bailee or keeper and had been fraudulently converted by him.....That beyond this the statute was not intended to go,” and so it was held that where money was paid by mistake and fraudulently converted, no conviction could be had under the statute, inasmuch as the moral turpitude was not so great as in those cases usually comprehended within the offense of embezzlement, and that the legislature could not have intended to place them on the same footing.
In Commonwealth v. Hussey, 111 Mass. 432, it is held that “the fiduciary relation essential to characterize the crime is sufficiently expressed by the averment that the property was delivered to the defendant upon the trust and confidence that he would return it to the owner on demand.” That was an indictment under the statute in question. Notice the expression, “the fiduciary relation essential to characterize the crime,”
In Commonwealth v. Concannon, 5 Allen, 506, an indictment under the same statute for embezzling a mortgage, it is said: “ There is a distinct averment that the deed was delivered to the defendant, and that he took and received it for the purpose of carrying and delivering it to the prosecutor. We cannot see that this does not fully and formally set out the agreement or trust on which the deed was received by the defendant.” It was held sufficient.
In Commonwealth v. Simpson, 9 Met. 138, an indictment under the prior statute for embezzling goods, it was held that a conviction could not be had under an indictment good only as an indictment for larceny. The court say : “ The general object of the various statutes in relation to embezzlement, in England and in this Commonwealth, doubtless was, to embrace,' as criminal offenses punishable by law, certain cases where, although the moral guilt was quite as great as in larceny, yet the technical objection, arising from the fact of a possession lawfully acquired by the party, screened him from punishment. They were therefore declared crimes punishable by law.
“ The purposes of this statute may, as it seems to us, be sufficiently attained, without any infringement of those rules of criminal pleading which require the charge to be particularly and certainly set forth. The defendant should, as far as is reasonably practicable, be apprised, by the indictment, of the precise nature of the charge made against him. This, in embezzlement, so far as
“ The court are of opinion that the two offenses of larceny and embezzlement are so far distinct in their character, that under an indictment charging merely a larceny, evidence of embezzlement is not sufficient to authorize a conviction; and that, in cases of embezzlement, the proper mode is, notwithstanding the statute to which we have referred, to allege sufficient matter in the indictment to apprise the defendant that the charge is for embezzlement. Although the party, in the language of the statute, ‘shall be deemed to have committed the crime of simple larceny,’ yet it is larceny of a peculiar character, and must be set forth in its distinctive character.”
That case was referred to and adopted in Commonwealth v. Pratt, 132 Mass. 246. It is there held that no judgment for embezzlement can be given unless the indictment directly charge larceny by the phrase “feloniously did steal, take and carry away ” as well as set out the nature of the embezzlement that is made larceny by statute. In Commonwealth v. Mead, 160 Mass. 319, 1894, an indictment under the' act in question charges the fiduciary relation. So does Commonwealth v. Parker, 165 Mass. 526, 1896. All of these decisions were made notwithstanding an existing Massachusetts statute, Pub. Stat. 1882, c. 203, § 44, providing that in such cases “ it shall be sufficient to allege generally in the indictment an embezzlement, fraudulent conversion or taking with such intent of money to a certain amount without specifying any particulars of such embezzlement.” But they hold that the breach of trust and confidence which is essential to charge embezzle-^ meat must be averred as well as proved.
I. Fiduciary relation.
II. Fraudulent conversion.
III. Larceny in apt phrase.
Unless all of these be proved, no conviction can be had, and it is common learning that all elements of a crime necessary to be proved must be averred.
Under our statute, construed in the light of the Massachusetts cases, from whence we adopted it, there is no escape from holding the indictment in this case insufficient, and the result is supported by reason as well.
Judgment arrested.