38 App. D.C. 323 | D.C. Cir. | 1912
delivered the opinion of the Court:
The appellant, Robert G. Woodward, alias Robert Graham, alias John Henry Roper, defendant below, was convicted in the supreme court of the District of Columbia of the crime of embezzlement. From the judgment sentencing him to imprisonment, he prosecutes this appeal.
The facts, briefly stated, are that defendant was in the employ of one Ordway, a manufacturer of a certain patent medicine in New York. In May, 1908, Ordway, while in Europe, received a letter from defendant informing him that a letter had been received from the Internal Revenue Bureau, in Washington, requesting him to show cause why the medicine should not be declared a beverage. Defendant, as agent for Ordway, entered into negotiations with the Department, during which he represented to Ordway that it would be necessary to employ one Lamar, a lawyer in Washington, and received $5,000 from Ordway as a fee to be paid to Lamar. The money was sent by carrier from New York, and delivered to defendant in Washington. It developed that Lamar had not been engaged by defendant, and never received the money,- — ■ hence, the charge of embezzlement. Defendant admitted receiving the money, but testified at the trial that he returned it to Ordtvay. On this point the evidence of the guilt or innocence of defendant turned.
Counsel for defendant present nineteen assignments of error, which they have grouped under six heads. We shall consider them in their order.
The first assignment charges an improper demand by counsel for the government, upon defendant, for the production of a letter claimed to be in his possession. The letter related to a preliminary matter. Ordway had been notified by defendant that notice had come from the Department at Washington, requesting cause to be shown why the medicine should not be
It is well settled that a defendant in a criminal trial cam
In that case, however, the demand was made by the court for the production of the document upon which the guilt or innocence of defendant depended. The demand was made under the mistaken belief that it was necessary to lay the foundation for the admission of secondary evidence to prove its contents.
The present case can be distinguished without difficulty. The evidence was not self-incriminating, and the circumstances were not such as to convey to the jury the impression that important evidence was being withheld by the defendant. And since the contents of the letter were admitted and went to the jury without objection, nothing remained upon which the jury could base a presumption that defendant was withholding incriminating evidence. We must also assume that the jurymen were men of average intelligence, capable of understanding from Ordway’s statement of the contents of the letter, when considered in connection with the other evidence in the case, that it had little or no bearing upon the guilt or innocence of defendant.
The second and third groups of assignments of error and exceptions will be considered together. They relate to the exclusion of testimony offered by defendant and the admission of testimony offered by the government. The vast number of exceptions and assignments of error embraced in these two groups forbid the separate discussion of each; neither do we think it essential to the proper consideration of the case. The
The exceptions relate largely to collateral matters occurring before and after the transactions surrounding the commission of the crime. Many of them relate to matters tending to discredit the evidence of Ordway, and as establishing a motive for Ordway to prosecute the defendant. However much of Ordway’s testimony as to these matters may have been false, and whatever his motives may have been, as to his testimony relative to the actual commission of the crime, he is corroborated to an extent which justifies the finding of guilt by the jury. We have examined each of the numerous exceptions
The fourth and sixth groups of the assignments of error and exceptions relate to certain instructions given in the charge of the court. The two instructions given the jury in the general charge of which defendant complains are as follows:
“You have now to understand what the law means by the expression, ‘convert to his own use.’ I can illustrate that better than it could be defined. By that expression the law contemplates any act of dominion over the money, with the intent, at the time, of making that money his own. If Mr. Woodward, as conceded, came into possession of this money, and, as claimed by the government, if he exercised an act of dominion over that money in simply handing it over to the clerk of the New Willard to keep in the safe, and if it was with the intent to make that money his own, that was a conversion to his own use; because conversion to one’s own use of an article or of money does not necessarily require that he shall have disposed of it in a particular way, like spending the money. It only requires that he shall have made it his own. The law regards money as made one’s own, when he exercises any act which disposes of it even temporarily, when, at the time of performing that act, he intends to permanently make it his own. That is one theory, upon which the government claims the evidence demonstrates a particular act which amounts to a conversion. If you find, as the government claims, that Woodward, the defendant, having in his possession tie money, delivered it o\?Cr to tkc clerk oí ike hotel, to be kept in the safe all night; and if you further believe that, when he did that, he intended to permanently make that money his own, — that would be a conversion such as tbe law contemplates. * * * The other phase of the case under which the government claims the evidence shows a conversion is this: The government claims the defendant, Woodward, having admitted that he got the $5,000, and having testified that he gave that identical $5,000 back to Mr. Ordway on coming again to New York, has testified falsely in that regard,
The latter instruction, if standing alone, would be erroneous. It, in effect, charged the jury that, although they should find that defendant had no intent to convert the money to his own use in the District of Columbia, but afterwards failed to return it to Ordway, they would be justified in finding from that fact alone that he converted it to his own use. This leaves out of consideration the venue of the crime. Criminal intent in the mind of defendant to convert the money to his own use in this District, since he had the money in his possession, is all that was necessary to lay the venue here. If the intent was not formed, however, until after he left the District of Columbia, the venue of the crime could not be laid here. He was in five separate jurisdictions after leaving here, before he could have returned the money to Ordway, in New York; it was therefore necessary for the jury to find that the intent to convert the money existed in defendant’s mind while he was in this District.
This instruction should be considered not only in the light of the preceding one, but in connection with the following prayer granted at the request of counsel for. defendant: “In
These instructions, read in the light of the evidence, are briefly to the effect that if the jury believe that the defendant received the money and placed it in the safe at the New Willard Hotel, subject to his withdrawal; and further believe that he did not return the money to Ordway, in New York, as he claims, — they would be justified in believing that, when he put the money in the safe, he did so with the intention of converting it to his own use.
Each case must be determined in the light of its own facts, and in embezzlement the exact time and place of conversion, like intent, must frequently be inferred from the actions of the accused, as well as the circumstances shown to exist in connection with the transaction. The jury may well have inferred that the intent to convert the money to his own use existed in the mind of the defendant when he telephoned to New York. If so, the conversion followed when he came into possession of the money and first exercised control over it. The issue of fact on which intent and conversion must be predicated is so narrow that, as suggested in the instructions, they must be gleaned from the defendant’s exercise of control over the money when he received it, and his failure to return it in New York. We think, therefore, that while the instructions, owing to the unfortunate custom of not reducing them to writing, are somewhat ambiguous, and not as clearly expressed as they other
Defendant complains of the refusal of the court to give certain instructions requested. The instructions refused were to the effect that, under the evidence, defendant could not be convicted of the crime of embezzlement. It is claimed by counsel that defendant could, at most, have been convicted of the crime of larceny. Our statute defining embezzlement is as follows: “If any agent, attorney, clerk, or servant of a private person or copartnership, or any officer, attorney, agent, clerk, or servant of any association or incorporated company, shall wrongfully convert to his own use, or fraudulently take, make away with, or secrete, with intent to convert to his own use, anything of value which shall come into his possession or under his care by virtue of his employment or office, whether the thing so converted be the property of his master or employer, or that of any other person, copartnership, association, or corporation, he shall be deemed guilty of embezzlement.” D. C. Code, sec. 834 [34 Stat. at L. 1325, chap. 854].
Defendant’s agency was clearly established. According to the evidence, which the jury must have accredited, the money was sent by Ordway for a perfectly legitimate purpose. It was given into defendant’s possession for this purpose, on his representation that it was so needed. It was not money merely in the custody of defendant, although this would have been sufficient, since the common-law distinction between custody and possession does not exist under our statute.
Counsel contend, however, that inasmuch as defendant came into the possession of the money by a fraudulent trick or device with intent to steal it, the crime is larceny, and seem to rely upon their conclusion gathered from a review of the California cases in Grin v. Shine, 187 U. S. 181, 47 L. ed. 130, 23 Sup. Ct. Rep. 98, 12 Am. Crim. Rep. 366, as follows: “Where one honestly receives the possession of goods upon a trust, and after receiving them fraudulently converts them to his own
The remaining assignment of error relates to the alleged misconduct of counsel for the government in his argument to the jury. Counsel for defendant in his argument referred to a particular transaction between defendant and Ordway ■which he regarded as indicating good faith and frankness on the part of defendant, and said to the jury: “Was that, gentlemen, the conduct of a crook, or was that the conduct of an honest man?” Whereupon counsel for the government, in his closing address to the jury, referred to the argument of the counsel for defendant, saying: “Mr. Davis has argued to you, gentlemen, that the action of the defendant in relation to the itemized statement of the charge of May 29th, 1908, was not the action of a crook; but, gentlemen, we are not dealing here with an ordinary crook, we are dealing here with a clever confidence man.” Defendant, by his counsel, objected and moved the court to discharge the jury from further consideration of the case. The court denied the motion, and refused to give the jury any instruction relative to this remark. In the light of counsel’s argument in support of the former assignment, to the effect that defendant, according to the evidence, procured the money from Ordway by a fraudulent trick or device, he is hardly in position to complain that counsel for the government exceeded the rules of propriety in his argument. In that view of the evidence, the remark was merely
We find no reversible error. The judgment is affirmed, and it is so ordered. Affirmed.