State v. . WilsonState v. . Wilson
- Reporters:
- ,
- Before:
- Smith
(after stating the case.) We have not, had any argument in support of the ruling, but the Attorney General calls our attention 1o two sections, numbered 1014 and 1065, in The Code, as bearing upon the imputed offence.
*732 The first mentioned section is in these words: “ If any •officer, agent, clerk, employee or servant of any corporation, person or copartnership (except apprentices and other persons under the age of sixteen yeаrs), shall embezzle or fraudulently convert to his own use, or shall take, make way with or secrete, with intent tо embezzle or fraudulently convert to his own use, any money, goods or other chattels, bank notes, •сheck, order for the payment of money, issued by or drawn on any bank or other corporatiоn, or any treasury warrant, treasury note, bond or obligation for the payment of money issued by the United Stаtes or by any State, or any valuable security whatsoever, belonging to any other person or corporation, which shall have come into his possession or under his care, he shall be guilty of a felony, and punished •as in cases of larceny.”
The purpose and effect of this enactment are to protect property from the depredations of those whose occuрations and relations to the employers furnish facilities and temptations to the taking of property thus exposed, and to place the criminal act upon the footing of larceny, to whiсh it is •closely allied, by reason that the intent is common to both. No goods are intrusted to the speсial custody of the person except through the misplaced confidence which grows out of the relation itself. Hence the crime cannot be committed by one not arrived at sixteen yеars of age.
The other enactment, less severe in terms, is as follows: “If any servant or employee to whom any money, goods or other chattels, or any of the articles mentioned’in the preceding section (1064) by his master shall be delivered safely to be kept to the use of his master, shall withdraw himsеlf from his master, and go away with the said money, goods or other chattels, or any of the articles, sеcurities or choses in action, mentioned as aforesaid, or any part thereof, with intent to steal the same and defraud his master thereof, contrary to the trust and confidence in him reposed by said mas *733 ter; or if any servant, being in the service of Ms. master,, without thе assent of his master, shall embezzle such money, goods or other chattels, or any of the articles, securities or choses in action mentioned as aforesaid, or any part thereof,, or otherwise convert the same to his own use, with like purpose-to steal them, or defraud his master thereof, the servant so-offending shall be fined or imprisoned in the penitentiary or county jail, not less than fоur months nor more than ten years, at the discretion of the Court: Provided, that nothing in this section contained shall еxtend to apprentices oJ servants within the age of eighteen years.”
This enactment has for its оbject the punishment of breaches of trust committed by those into whose custody the property, hаs passed, when accompanied with an intent to steal and thereby defraud the owner, when the sеrvant or employee makes way with the goods and himself, or when such goods are in his custody and charge he shall embezzle them or in some other way appropriate them to his own use with the like рurpose to steal and defraud. This has reference, primarily, to cases where the taking is lawful аnd the animus furandi enters into the disposition made of them. The indictment is evidently framed upon this latter section, whose phraseology is so largely followed in defining the criminal act, and this is the more manifest in the adoption in very words of its proviso-
The indictment does not, however, set out any facts con-, stituting a trust in the dеlivery of the money, but, for aught, appearing to the contrary, alleges a larceny of monеy which had gone into the defendant’s- possession, except that it omits to charge a feloniоus taking by a servant.
The general scope and aim of the statute will bear a somewhat strained intеrpretation,, if construed to embrace the facts charged in the indictment, and we are not prepared to give it so large a meaning. However this may be, the casé-is within the terms of the first recitеd section, which requires, to consummate the crime, no breach of trust or abused con *734 fidence in placing the money in the defendant’s hands other than such as results from the relation of master and sеrvant, and which affords unusual opportunities for the perpetration •of the crime.
The averment that the defendant, when committing the act, was not within — that is, was of the age of eighteen years or more, and thus negatives that she was under sixteen years of age — does not invalidate the indictment, althоugh the negative goes beyond the statutory requirement, for the greater includes the less.
There is error, and the judgment is reversed, and the Court will proceed to judgment upon the verdict.
Error.