The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1880-04-20

the Revised Statutes tsection eo7) under, which
the defendant Ia indicted creates two distinct
offenses. embezaIement and conversion, tnt
the distinctnesa Of the offenses II was not nee
essary. In order TO convict. that the Jury shonio
lind the prisoner was entru.ted WITH tne ,u th
If this theory announced by the eonr
be correct and was adopted BY the
the Indictment Is bad for dupliclty and two dis
| tinct ofrenses are ioned In each count: that or
| this theory. maintained by, the court. the In
combines the otrensee did wrongfulIy use, dis
| pose Of conceal and otherwise embezze efst
| convert to his own use certain money" and be
contends that the ot1enses Of wrongfully using
disposinE Of and concealiDR. being each dis
tinot and different. as well IA distinct and diff
ferent from the embezzlement and cow reior
charges. and that this distinction Ia recognis I'd
In sections 9Ob and es7 Of the Revised btat N es
that the Indictment contains no sufficient
description Of the money which the defendant
is charged 10 have embezsl ed con verified. used
disposed of and concealed, which the law re.
quires TO identify the oifonse. to, protect de-
PENDANT from second persecution prosecute !, and ts
insufticiencies are mater nj and substantial
and not cured by plea, trial or verdict, In HE
the the defendant urges: that II, on the other baud
the Indictment contains hut one offense, tn &C
the same IN fatally defective because NJ offense
known to tho law is therein described. The
's' sS"ti e inc 9Io"S &c to ses
count Of the Indictment. It was too late to
raise that question ana IT. does not affect the
worth OF the verdict" AS to the point that
there was no sufficient description OF the
money the court held II to be sufficient. and
also held, as to the point raised In the supple
mental motion In arrest. that the ofTense ia
clearly defined under the law.
The defendant assigns as error the charge
given by the lower court. the retusals to In
struet the jury rs requested by the defendant.
the admission of the testimony Of J. 8. Walton
and j O. Egau and the rulinGs which were ex-
cepted to and to which bills Of exceptions were
This court Is not called upon nor Is It within
Its province to decide npon the guilt or limo
cenee Of the accused. 1t can deal only with the
state Of facts embodied and admitted In the
bills of exc options certified by tho lower court.
q he e nor the Of
ness of pleading. the strict construction Of
penal statutes according to the usual and rea-
Fl wofs snd
to the rules of pleading AID law of evidence. are
required.
In his charge to the inry the Judge of the
Statutes Of the State. which provides that any
charte led by this State who
shall knowingly and willfnllv embez2le and
convert to his own use. or shall knowingly aid
and abet any person In embezzllug or convert
Ing to his own use any money belonging to
such bank or deposited therein, shall on con-
vioion be imprisoned at hard labor not more
than seven nor less than one year"
1t Ia true that in both counts of the indict-
ment the defendant Ia charged with embez-
zng and converting to his own use:" in the
fret count these charges are rs to money
belonging to the bank. and in the second count
as to money deposited" therein. Section 9o7.
tt,f fTav
bezzlinR or converting to his own use. by G T.
tain bank officers and employees. money either
belonging to or deposited in the bank. We
the bank officers and employees desig-
mated therein. the allegations of embezzi,ng
money belonging to the bank or deposited in 1t.
would embrace as an ingredient essential to
the oifense, the conversion of such
money: that while embezzlemen in Its very es-
senee includes conversion without which con-
version embeyzlement has no existence con-
version does not include embezzlement. Under
this section. any of the officers named might
be prosecuted for knowingly and willfully con-
from embezzlement. and while. as we have
stated, conversion Ia necessary to embeNe |
mont and ia an ingredient Of the offense,
charging both embeSzlement and conversion
does not render the Indictment
obnoxious to the objection # either duplcity
or uncertainty Bishop on Criminal Proceed
We are OF the opinion that in prosecutions
under section 9o7. Revised Statutes, it is not
necessary that the Indictment should charge
Of he 9oey as hns
have been embezzed or converted. In that sec
ion. which applies only to bank off1cers the |
Ingredient of6custody possession. or being in
rusted with. is not mentioned % a requisite to |
constitute the otfense therein denounced; while |
IN other statutes. by which embezzement by |
iesisnated In section eo7 these conditons nrs
made elements Of the offense We |
are also of opinion that the description of the
general allegation of the amount and the thing.
Is sufficient In a proceeding under section 9O7 |
as provided In section soe Revised Statutes.
The Indictment In this case howev- r, does |
not oen6ne itself to section so7 Revised Statutes.
and 1t is difficult to perceive now and wherein |
It is framed under that section. That de-
money belonging to or deposited In q bank by |
certain officers of such bank: 1t Is limi ed to |
hose two. ,offenses. We think 1t may be safely |
zach of the several officers designated therein |
vas entrusted with the custody. keeping. care
or possession of the funds of the bank and |
'riminally for the commission of the offenses |
of emhezzlement or conversion to bis own USE |
Section 9o5. Revised Statutes Of 1870, under |
dement, or Breach. of Trust" creates other and |
Instinct offenses than those contained in sec.
Ion 907; 1t reads as follows:
ANY servant. clerk. broker. agent, con-
ignee. trustee. attorney. mandatory deposit
airy. common carrier. bailee, curator. tesla
nentary executor. administrator. tutor or any
'erson holding any office or trust under the
n the service of any public or private corpo-
alton or company who shall wrongfuly use,
dispose. conceal or otherwise embezze any
eipt. bill Of lading. or any other property
7hich he shall have received for an
Their. or for his employer. princ-
flee. trust or employment. or which shall
ave been entrusted to his care. Keeping or
by another, or by his employer,
lon or company. upon conviction thereof
shall suffer Imprisonment at hard
abor not exceeding seven nor less than
ne year" Thus 1t will be seen that ia
his Indictment there are grouped In each
cunt the off snses described in these two diff