262 F. 459 | S.D.N.Y. | 1919
(after stating the facts as above).
The first objection I answer as I have'answered the objection to the “defrauding” counts. While embezzlement differs from larceny precisely in this, that it does not depend upon a violation of possession, nevertheless á person lawfully in possession may transfer that possession to another as a fiduciary, and the latter, having received possession, in that way and betrayed the trust, will not be heard to question the ownership of the immediate victim. Rex v. Beacall, 1 Car. & P. 310, 454; Campbell v. State, 35 Ohio St. 70 (the statute reading, however, in that case “anything of value which shall come into his hands by virtue of his employment” [Act May 5, 1877 (74 Ohio Laws, p. 249) § 11]); Waterman v. State, 116 Ind. 51, 18 N. E. 63 (the prosecutor was a consignee); Meacham v. Florida, 45 Fla. 71, 33 South. 983, 110 Am. St. Rep. 61.
The second point depends upon the meaning to be attached to the word “embezzle,” in the Criminal Code. As there was no such common-law crime, and as the statutes of embezzlement are various, a question' arises as to just what elements enter into the crime. It has been very common to define embezzlement as the conversion of “the property of another,” arid under that definition many courts have excluded propertv owned in part by the defendant. McElroy v. People, 202 Ill. 473, 66 N. E. 1058; People v. Ehle, 273 Ill. 424, 112 N. E. 970; State v. Kent, 22 Minn. 41, 21 Am. Rep. 764; Van Etten v. State, 24 Neb. 734, 40 N. W. 289, 1 L. R. A. 669; Com. v. Libbey, 11 Metc. (Mass.) 64, 45 Am. Dec. 185 (semble); State v. Kusnick, 45 Ohio St. 535, 540, 541, 15 N. E. 481, 4 Am. St. Rep. 564.
In cases where the defendant has the right to retain as commission part of a sum of money courts have at times therefore been at some pains (Campbell v. State, 35 Ohio St. 70, 74), to inquire just where the title to the whole fund lay at the moment of conversion, and whether the defendant had any property interest in it at that time. Yet, on the whole it is the weight of the later authorities, and as I think much the better, that this inquiry is not necessary, but that the right to deduct a part of a sum'of money due the prosecutor is irrelevant to the question whether the defendant has committed embezzlement in converting the whole. State v. Maines, 26 Wash. 160, 66 Pac. 431; Com. v. Fisher, 113 Ky. 491, 68 S. W. 855; Com. v. Jacobs, 126 Ky. 536, 104
Com. v. Smith, 129 Mass. 104, 110, is probably not in point, and stands upon the fact that defendant was bound to turn over the whole sum without deduction. Apparently his pay was merely calculated by commission. Reg. v. Tite, 8 Cox, C. C. 458, probably must be understood in the same way. But' in Hartley’s Case, Ryan & R. 139, I understand the facts to be that the defendant was entitled to retain his-commissions, and perhaps in Carr’s Case, Ryan & R. 198, as well, though that is uncertain.
Strictly, of course, as the count cannot stand through aider, the demurrer may not either, and if the allegations are adequate, I ought not to read to their prejudice the other counts. Yet I own to an unwillingness, unless it be necessary to make a decision upon a putative situation which is obviously untrue, merely because there is no special demurrer for repugnance between the counts. Moreover, I think it may be quite honestly said that the count taken alone is insufficient, if' I have correctly limited the scope of the order. The phrase, “deliver under a private, secret, and corrupt agreement, and not at private auction and sale,” means nothing. “Delivery,” standing alone, does not import a final disposition qua the carrier, and is consistent with an agreement to sell at public auction, though the delivery were not itself at public auction. The corrupt agreement may well have been to embezzle a part of the proceeds after an auction sale as fiduciary for the carrier. I hold, therefore, that the pleading is bad, if designed to lay the only facts which could constitute a violation of the order.
Therefore, in any aspect of the case, the question is altogether irrelevant whether the United States had the right to sell freight which remained unclaimed. It is irrelevant to the former counts, because the defendants are not in any position to question the title of the United States. It is irrelevant on this count, because the order was not violated. As the issue should under no circumstances be imported into any phase of the three indictments or of the trial, I decline to consider the questions of law discussed by the defendants touching it.
Demurrers overruled to all counts of all indictments, but the third count of the Jersey Central indictment. Demurrer to that count sustained.