CHARLESTON.

#### State *v.*Joseph Cantor.

Submitted February 20, 1923.

Decided February 27, 1923.

1. *Embezzlement*— 'Indictment *for Embezzlement, Omitting Purpose for Which Moneys Intrusted and Employment of Accused, Eatally Defective.*

An indictment for embezzlement which avers that defendant on a stated time and in the proper county, divers moneys, bank notes, etc. of certain value, the property 'of the prosecuting witness the same having been then and .there intrusted to defendant to he redelivered to the prosecuting witness, did, before delivery- thereof -to -prosecuting witness-, then and' there unlawfully and feloniously embezzle, -and fraudulently convert to his own use and steal, is fatally defective by reason of omitting the purpose for which' such moneys were intrusted,- the trust relation of the accused, and the office, place or employment of the accused. (p. 242).

*2392. *Same*— Law *Making Conversion of Property Before Delivery Embezzlement Applies Only to One to Whom Such Property Intrusted to be Delivered to Another Person.*

Sec. 20, chap. 145, Code, which provides: “If any carrier or other person to whom money or other property whioh may he the subject of larceny, .may he delivered to he carried for hire, or any other person may he intrusted with such property, embezzle or fraudulently convert to his own use or secrete with intent to do so, any such property, either .in mass or otherwise, before delivery thereof at the place at which, or to the person to whom, they were to be delivered, he shall toe deemed guilty of .larceny thereof,” applies only to one to whom such .property is intrusted to be carried and delivered to another person, (p. 242).

3. Same — Indictment and *Information*— Essential *Elements of Indictment for Embezzlement by a Person Intrusted With Delivery of Property Stated.*

An indictment under sec. 19, chap. 145, Code, must aver the proper venue and time, that defendant did feloniously embezzle, convert to his own use and steal the kind of property embraced. in the section, describing it,1 and stating its value; that the property is the property of another person, naming him;, that defendant came into possession or care of such property toy virtue of his office, place or employment which also must be stated; against the peace and dignity of the state, (p. 242).

4. Indictment and *Information*— General *Motion to Quash Indictment for Defects on Face Overruled if Containing One Good Count.*

A general motion to quash an indictment for defects on its face, should toe overruled if the indictment contains one good count, (.p. 242).

5. Criminal *Caw*— Evidence *of Contemporaneous Embezzlement Arising Out of the Same Transaction for Which Accused . Indicted Admissible Only to Show Intent, System, or Method of Accused; Failure to Confine Consideration of Evidence of Contemporaneous Embezzlement to Show Intent, System or Method Not Erroneous, Where it Could Not be Applied for Any Other Purpose; Instruction That Evidence of Contemporaneous Embezzlement be Confined to Shoio Intent, System, or Method of Accused Should be Given if Requested.*

As a general rule, where evidence is introduced tending to show a contemporaneous embezzlement toy defendant, *240arising out of the same transaction for which he is indicted, the court should instruct the jury to .consider the evidence only for the purpose of showing intent, system or method of the accused, and not to consider it as evidence of another crime, and to carefully limit the evidence to the purposes for which it is admissible; yet, where the circumstances are such that the jury could not possibly apply the evidence to any other purpose .than that for which it was admissible, failure to instruct will not be reversible error. But where such instruction i's asked for by the prisoner, it should be given, (p. 245). , •

6. *Embezzlement*— Admission *of Evidence That Accused Subsequent to Alleged Embezzlement Sold Property in Due Course of Business Erroneous.*

Evidence that the accused, some time after the alleged embezzlement was consummated, sol'd a house and lot, the sale being regular and for value and in 'due course of business, ■is inadmissible, and if admitted constitutes reversible error, (p. 247).

7. Cbiminal *Law*— Abstract *Instruction, Unconnected With Evidence Not Indicating ’¿Facts Malting it ■ Applicable, Should Not be Givlen.*

An instruction stating an abstract proposition of law, without in any way connecting It with the evidence, or indicating what facts the jury must find from the evidence in order to make it applicable, ought not to he given.

Error to Circuit Court, Marion County.

Joseph Cantor was convicted of embezzlement and larceny and he brings error.

*Reversed and remanded.*

*Musgrave & Brandon,*and *Robinson <& Robinson,*for plaintiff in error.

*E. T. England,*Attorney General, *R. Dennis Steed,*Assistant Attorney General, and *John W. Mason, Jr.,*Assistant Prosecuting Attorney, for tbe State.

Lively, Judge :

Joseph Cantor was convicted in the criminal court on an indictment for embezzlement and larceny, and sentenced to six years confinement in tbe penitentiary; upon refusal *241of tbe circuit court to grant a writ of error, he obtained and now prosecutes this writ of error.

It appears that about- September 27, 1921, Mat Niksich was arraigned before a justice of the peace for a violation of the prohibition law, and his hearing thereon was continued to a future date, about the 6th day of October following. Bond was required in the sum of $1,000 for his appearance, which was- signed by the defendant, Joe Cantor. On the same occasion George Oraskovich was arraigned before the same justice on a similar charge and his bond was signed by Joe Cantor also. Torn Marich, a friend of Mat Niksich, had $600 which he agreed to place with defendant to 'be held by him until after the trial. George Oraskovich also had a similar amount which he placed with defendant under the same arrangement. The state’s witnesses in substance say that the $600 so delivered to defendant was for the purpose of indemnifying him for going on the bond and was to be returned by him to the owner after the trial. After the bonds had .been signed at the court house, defendant, in company with the others, all of whom were Croatians and could not read or speak the English language, went to the office of Cantor who operated a tailoring business known as the Cantor Tailoring Company, where the money was counted out and turned over to Cantor, who was also a Croatian but could speak the English language and had been acting in the capacity of interpreter in the courts. On the day set for the trial, Mat Niksich and George Oraskovich appeared, and the justice released them under instructions from the prosecuting attorney. It appears that there was no tangible evidence against them. After being released they desired of Cantor the return of the money placed with him, but he failed and refused to turn it back to them. According to their testimony he stated that he could not then return the money, but proffered to pay, at one time 6% and at another 10% for its use, which the prosecuting witness declined to accept. When the money was delivered to defendant he gave a receipt therefor on a form used in the business of the tailoring company and which was signed *242“Tbe Cantor Tailoring Company, by J. C.” , It is dated on tbe 27tb of September, 1921, and reads: “Received of Tom Marieh, on account, $600 for bond,” followed by tbe signatures above. A similar receipt was given to George .Orasko-vicb. As above stated, tbe evidence of these Croatians, supported by tbe evidence of other persons, was to tbe effect that tbe money was turned over to defendant to make him safe in going on tbe bond of Niksich for bis appearance for trial in tbe justice’s court. Tbe defense is based upon tbe theory that tbe money was not turned over to defendant for that purpose, but was simply a loan. Tbe defendant so states, and be is corroborated by bis bookkeeper, Miss Mus-grave, who witnessed tbe transaction in tbe office, and who testified that she beard enough of tbe conversation, although it was partly carried on in a foreign language, to substantiate defendant’s claim of a loan; that she received and counted tbe money in tbe presence of tbe others and entered it as a loan upon tbe books of tbe tailoring company, and that tbe money was used by the tailoring company in tbe con- • duct of its business. The books of tbe tailoring company and tbe entries therein were introduced, which corroborated tbe testimony of tbe bookkeeper. Another witness, who claimed to have been present, and who was conducting a branch of tbe tailoring business at Elkins, testified that he beard enough of tbe conversation to impress upon him that the money was a loan.

After several efforts by Tom Marieh and through his attorney to obtain tbe return of .the money, suit was instituted and judgment obtained for tbe $600, against' defendant. About that time a receiver was appointed for tbe tailoring company. In January following this indictment was found.

Defendant’s motion to quash tbe indictment was overruled, and this is assigned as error. Tbe indictment contains two counts, one for embezzlement, tbe other for larceny. Stripped of its unnecessary verbiage, the embezzlement count charges that Joseph Cantor, on tbe.day of October, 1921, divers moneys (describing same), tbe money and prop*243erty of Tom Maricb, of tbe value of $600, tbe same having been intrusted to Cantor to be re-delivered to Marieh, did, before tbe delivery thereof to Marich, then and there unlawfully and feloniously embezzle and fraudulently convert to his own use, and steal. Is this a good count for embezzlement? If it can be sustained at all, it must be under sec. 19 of chap. 145, Code. It cannot be sustained under sec. 20 of that chapter, because that section applies only'to one to whom property is intrusted to be carried and delivered to another person. The crime of embezzlement was unknown to the common law, and hence is purely statutory, and we must look to our statute and to its provisions, strictly construed, in order to determine whether the particular offense is properly charged. Sec. 19 reads-: “If * * * any agent * * ***embezzle or fraudulently convert to his own use, bullion, money * * * or any effects or property of any other person, which shall have come into his possession, or been placed under his care or-management, by virtue of his office, place or employment, hé shall be guilty of larceny thereof.” An indictment under this section must charge that the defendant feloniously ejnbezzled, converted to his own use and stole the kind of property embraced in the section, describing it, and state its value; that the property is the property of another, naming the person; that the defendant came into possession or care of such propery by virtue of his office, place or employment, which office, place or employment must also be stated. It is apparent that this- count does not meet these requirements, and is fatally defective by reason of omitting from the indictment the purpose for which such moneys ■ were intrusted, the trust relation of accused to Tom Marich, and the office, place or employment of the accused. The count simply says that the property of Tom Marich, of the value of $600, had been intrusted to Cantor to be re-delivered to him, Marich, and that before the delivery thereof, defendant unlawfully and feloniously embezzled it, converted it to his own use and stole it. What trust relation is shown by the count? What was the place or employment of defendant as shown by this count? The allegation that he was intrusted with the property of Marieh is too loose and in*244definite. Whether the , agency of defendant was that of . a common carrier or that the money was to be kept or used or appropriated to any particular object or service, is not shown. The simple allegation that the property was delivered, 'to be re-delivered, falls far short of meeting the requirement of the statute. *Com.*v. *Smart,*72 Mass. 15; Arch. Crim. Pl. (5th Am. Ed.) 41: The indictment must distinctly allege the existence of the trust relation, or set out the facts which establish such l’elation, otherwise the count will be insufficient to show that the crime charged has been committed. 2 Wharton’s Crim. Law, sec. 1309; Whar. Crim. Pro. Vol. 1, sec. 586; citing numerous authorities. It is clear that this count is not good as charging «he cripe of embezzlement' under section 19. But it is Insisted that it may be sustained under section 20. As above suggested, that section applies only to one to whom property is intrusted to be carried and delivered to another person. Similar sections almost verbatim with ours have been so construed by various courts. *Com.*v. *Williams,*3 Gray (69 Mass.) 461; *Territory*v. *Heacock,*20 Pac. Repts. 171; *State*v. *Mims,*2 N. W. 492; *State*v. *Grisham,*2 S. W. (Mo.) 223.

The embezzling count is fatally defective. However, the second count is good as charging larceny, and’ as the motion to quash was general and for defects on the face of the indictment, it was properly overruled, because it contains -one count which is good. *State*v. *Cartwright,*20 W. Va. 33.

A count for larceny may be joined with a count for embezzlement. 2 Whar. Crim. Law, sec. 1294. It is argued by defendant’s counsel that the larceny count is insufficient because it does not clearly state to whom the property belonged. We do not so read the count. Stripped of its abundant surplus verbiage it charges that Joseph. Cantor, in the county of Marion, on a certain day, certain moneys, bank notes, etc., of the value of $600, the money and property of Tom Marich, he, the said Joseph Cantor, feloniously did steal, take and carry away.

*245The count for embezzlement being- fatally defective, can the evidence of embezzlement be received to substantiate the count for common law larceny? Formerly a common law indictment for larceny was not sufficient. It could only be made so by statute. It appears that at one time the opinion was ventured at *nisi prius*in England to the effect that a common law indictment for larceny would be good in embezzlements by bailees, but this opinion was disregarded until in the time of Victoria when a law was passed which provided that in prosecutions of bailees who fraudulently-converted bailed goods an indictment for larceny would be sufficient. Mr. Wharton says that where a statute to this effect is not in operation it is essential in all cases of embezzlement as distinguished from larceny that the distinguishing features, that is the defendant’s fiduciary character, which divide embezzlement from larceny, must be specially detailed. 2 Whar. Crim. Law, sec. 1310. However, section 19, above referred to, makes an agent,- who embezzles or fraudulently converts to his own use bullion, money or any effects or property of 'another person which shall come into his possession or been placed under his care or management by virtue of his place or office, guilty of the larceny thereof. While I have grave doubts as to the • correctness of the holding, this court -seems to be committed to the proposition'that one under a common law indictment for larceny may be convicted of that offense by evidence showing that he embezzled the property alleged to have been stolen. *State*v. *Workman,*91 W. Va. 771, 114 S. E. 276; *State*v. *DeBerry,*75 W. Va. 632; “On an indictment for common law larceny, evidence of embezzlement, is admissible, and a conviction of that offense may be had." *Swick*v. *Bassell,*77 W. Va. 78. *Contra,*see 20 C. J. p. 460, sec. 56.

Defendant’s second point of error, relates to the introduction of a receipt given by him to Oraskovich for $600 at the same- time and for a like purpose, for which the receipt was given to the prosecuting witness, Tom Marieh. The point is made that the Oraskovich receipt related to a separate and distinct transaction had with another party, *246and was no part of the offense for. which the defendant was tried. The receipt was permissible as evidence on the theory that it would tend to show motive, system or fraudulent intent and not to be considered by the jury as evidence that another’ 'offense had been committed, and hence put the defendant on trial for two separate offenses. These receipts were given at the same time and arose out of the same transaction, and were permissible for the purpose indicated; but the objection thereto is that the court should have told the jury -that they could only consider the receipt as evidence for that purpose. The defendant did not ask the court to instruct the jury in that regard, but now claims that it was the duty of the court to do so without being requested, and that because the court failed to so instruct the jury, it-was prejudicial error. In many jurisdictions where evidence of another crime has been properly admitted, it being competent for some special purpose, and the court has neglected to instruct the jury that the evidence must be considered only for that special purpose, a verdict of guilty has been set aside. This is the rule uniformly followed in Texas, even when such instruction is not requested. *Hanly*v. *State,*28 Tex. App. 375, 13 S. W. 142. In other jurisdictions where such evidence has been admitted, the courts have not disturbed the verdict if the defendant fails to ask the court to properly instruct the jury. *Glover*v. *People,*204 Ill. 170; *People*v. *Fultz,*109 Cal. 258; *Reg.*v. *Chambers,*3 Cox C. C. 92. However,' it has been held that where the circumstances of the ease are such that the’ jury could not be misled to apply the evidence to any other purpose than that for which it was properly admitted, the failure to instruct is not prejudicial. *Leader*v. *State,*29 Tex. App. 63; *Carroll*v. *State,*58 S. W. 340; *Moseley*v. *State,*37 S. W. 736; 38 S. W. 197. We think the circumstances are such in the case at bar that the' jui’y could not have beep misled 'as to the import of the evidence. There was nothing in the record to show or to intimate that defendant had embezzled the money for which the Oraskovich receipt was given, There was no evidence that the Oras-kovieh-money had not been paid back.

*247Defendant’s third assignment of error is that the court, over his objections, required him to answer questions relative to the disposition of a house and lot owned by him, subsequently to the alleged embezzlement, and relating to the ownership of an automobile registered in his wife’s name, and his wife’s ownership of the household goods at the time of the trial. Defendant was asked to whom he conveyed his real estate about the first of November, 1921, and over objection answered that he had conveyed it to Lewis Golden. Asked if Golden was any. relation to his wife, he replied that he was not. He was then asked if he had an automobile, and he replied that he had several, once upon a time, but only one then, which was registered in the name of his wife. He was asked to whom the furniture in his residence belonged, and he replied that it belonged to his wife, and that she had bought it in her own name and paid for it. Objections were made to all of these questions and overruled. ¥e fail to see the relevancy of these facts to the issue. If the embezzlement was committed as alleged in the indictment and testified to by the state’s witnesses, the crime was complete when demand was made for the money and refused. The issue was the fraudulent conversion and embezzlement of the money with intent to deprive the owner thereof. The larceny having been committed the subsequent return of the money or its collection by forced process would not relieve defendant of the crime, then complete; and we do not see what bearing the subsequent sale of the house and lot would have on the offense already committed. Moreover, the simple fact o'f a sale of property would show no intent to steal. By innuendo it was sought to show that the vendee was some relative by marriage and that the sale was not made for a bona fide purpose. Observe that the price and terms do not appear. Perhaps the sale was beneficial, and was dictated by good business judgment. These matters were collateral to the issue, and to meet them would have been traveling afar. The trial was completed' about January 18, 1922, and the then financial condition -of the accused was gone into, and he was asked if he had any property at that time subject to levy. - The impression *248may have been made upon the jury by such evidence that the lack of funds to pay back the money was evidence of guilt. If he had abundant moneys at the time of the trial, would that have relieved him of guilt? An instruction of that kind would have been promptly and properly refused. We think defendant was prejudiced by this line of evidence. To what extent he was prejudiced is chimerical; but if -substantial error be committed it is presumed to be the prejudice of the prisoner. *State*v. *Musgrave,*43 W. Va. 672; *Ward*v. *Ward,*47 W. Va. 766, 35 S. E. 873; *State*v. *Douglass,*28 W. Va. 298. In *State*v. *Moyer,*58 W. Va. 146, it was held that in a trial for' embezzlement, evidence of the solvency of defendant at or immediately prior to the time of the alleged embezzlement is admissible. See *Bullock*v. *State,*10 Ga. 55; *U. S.*v. *Camp,*2 Idaho, 231. The embarrassing financial condition of the accused at the time of the commission of the alleged embezzlement may be shown by the State, tending in some degree to show motive for the crime, according to some decisions. *Bridges*v. *State,*103 Ga. 34; 29 S. E. 859. See *Fulmer*v. *Com.,*97 Pa. State 503. The evidence in the case at bar does not relate to the financial condition of defendant at the time of the 'offense, but relates to a subsequent period, several months afterwards. The bare fact that the house and lot was sold about November 1st, does not show .a good or bad financial condition of defendant at that time. The wife’s ownership of the automobile and household goods at the time of the trial in January was not pertinent to the issue. Inability of the prosecuting witness to collect his debt by legal process at the time of the trial would have no bearing upon the issue, but may have had a serious influence in bringing about the verdict.

Defendant’s fourth assignment of error is that his instruction No. 3 was modified and given by the court, and that an. important part thereof was stricken out. The instruction given as modified, sets out defendant’s theory on which his whole evidence was based. It told the jury that if they believed the money was borrowed for the use and benefit of the Tailoring Company, and defendant gave *249the company’s receipt therefor, which was accepted by Marich, then they should find defendant not guilty. The part stricken out was: “and that if you further believe from the evidence that said money so borrowed as aforesaid, was deposited in the bank, for the use and benefit of the said Cantor Tailoring Company, and .that you further believe from the evidence that the said Cantor Tailoring Company, has, at all times, since said sum of money, ■ aforesaid was so borrowed, had custody and control of same; and that the defendant, Joseph Cantor, did not have in his possession said money, and did not make use of said money, for his own personal use, then,” (followed by) “you should find defendant not guilty.” We cannot see that this part so stricken out adds much to the effect of the instruction given. It was immaterial what use the Tailoring Company made of the money; or where it was placed, if the jury believed it was borrowed. . On the other hand, if the money was not borrowed as claimed by .defendant, the fact that he turned it over to the tailoring company which used' and controlled it exclusively, would not relieve him, if 'he was without right to appropriate it. To appropriate to one’s own use, does not necessarily mean to one’s personal use or advantage. *State*v. *Ross,*55 Ore. 450; *Milbrath*v. *State,*138 Wis. 354.

On the theory that it does not contain all of the elements of embezzlement under our statute, state’s instruction No. 1 is alleged to be erroneous. It reads: 1 ‘ The Court instructs the jury that the essential element of the crime of embezzlement is the breach of a trust or confidence. Not every breach of trust will necessarily constitute embezzlement but every embezzlement must arise from a breach of trust. When money or other property is entrusted by one person to another to be delivered to a third person or .to be redelivered to the owner at a certain specified time or place, or upon the happening of a specified contingency, or when the- object for which it has been delivered is accomplished, and the person to whom it has been intrusted before delivery, or redelivery to a third person or owner converts the same to his own use, he is guilty of embezzlement, and he con*250verts the property or money to his own use whenever, with intent to defraud, he puts it to use other than that for which it was delivered to him or disposes of it in such a manner as to render it impossible for him to deliver or redeliver the same to such third person or owner at the time or place designated, or upon the happening of • the specified contingency or when the object for which it has been intrusted to him has been accomplished.” Without analyzing this instruction, it is enough, to say that it is abstract, and should not have 'been given in that form. It makes no reference whatever to the evidence nor does it submit to the jury the finding from the evidence of the facts giving’ rise to the law thus abstractedly stated. Instructions should apply the law to the facts of the case. “An instruction, however pertinent and applicable it may be, is abstract unless it' be made to apply, in express terms, either to the attitude of the parties or to the very facts in issue.” Blashfield on Instr. sec. 92. *Parker*v. *Building & Loan Ass’n., 55*W. Va. 134. Such instructions should not be given, but if given, and there be evidence to which they are applicable it will not be cause for reversal, unless it -is clear that the jury has been, misled or confused thereby. *State*v. Long, 88 W. Va. 669; 108 S. E. 279.

An order will be entered reversing the judgment, setting aside the verdict and remanding the case for a new trial.

*Reversed and remanded.*