The news-democrat. (Providence, R.I.) 1906-1909, 1907-08-06
c. 4. SMITH MUST
ANSWER CHARGE
BEFORE JURY

III appears from a decision handed down
oy Judge Mumford today that the defend
ant In the case OF Hope T. Williams VS..
clarence a. Smith will have 10 again face
jury. The plaintiff sues through her
guardian. James N. Smith, and charges
the defendant with having embezzled
the sum OF s3315.72 to her belonging She
Drought previous suit. and got a ver-
uict' out as no criminal complaint had
been made against defendant previous TO
bringing suit. the verdict was set aside.
Judge Mumford today handed down his
decision on defendants demurrers' The
lows: F' W
,s. The declaration then AYERS that on the
10Th day OF May. A. d.. 1902, the defend
ant did fraudulently embezzle and con-
vert 20 MS own use, and take and secrete
Win Win intent TO cheat and defraud said
property of the plaintiff, said defendant
being the agent, clerk and servant OF the
plaintiff said sum coming into his pos
session ana under his care and charge by
virtue OF said employment; and that on
me "a day OF January. A. d. 1907. COM
pant under oath was made 10 a proper
MAGISTRATE, viz, Henry A. Palmer, Esq.
justice OF the district court of the Eighth
judicial district. and thereupon a war
rant was Issued against said defendant
The defendant has demurred TO that
part of the count setting up the crime.
and complainant therefore. on several
grounds which raise two questions. viz:
whether the crime OF embezzlement is
set forth with sufficient certainty; and
whether the declaration shows that the
Justice OF the Eighth judicial district had
jurisdiction OF the offence supposed to
nave been committed.
The defendant contends that the crime
is not set forth with sufficient certainty.
He cites Struthers VS. Peckham. % r. l.,
D, and inasmuch as embezzement is a
felony he argues that the word felonS
lously is indispensable in an indictment
Tor the offence. and that the omission rem
ders the declaration defective
In my opinion, however. the declara-
tion In this case Is not 10 be judged by
the same rule In this respect. as an in
dictment The defendant here is not call
ed upon 10 defend himself against the
charge of embezzlement as crime. but
as foundation for a civil liability; the
allegation In question Is inserted only for
the purpose OF showing that the PLAINTIFF
has complied with the requirements OF
chapter 233, section Is. of the General
Laws. and In my opinion il is sufficient.
II the allegations show that crime has
been committed. and complainant there
fore made to the proper magistrate. even
though the declaration may omit some
allegations which would be necessary to
the technical accuracy OF an indictment.
l am. therefore. OF the opinion that the
court substantially charges the crime Of
embezzlement.
"As to the claim that IL does not appear
that the crime was within the jurisdic-
ton of Judge Palmer's court, as more
than three years had elapsed since the
commission OF the alleged crime and the
statute of limitations had blocked all
prospects OF successful prosecution, Judge
says: "Inasmuch as by this
statute. a person guilty of embezzlement
shall be deemed guilty of larceny. and
may be tried, sentenced and punished as
for any other larceny and as the lmita-
ton does not apply to the crimes of lar
ceny, the crime charged was. In my opin-
ion. within the jurisdiction OF the district
court OF the Eighth judicial district. and
the justice OF that court was a proper |
magistrate.
Il have not overlooked the fact that |
the demurrer purports TO be interposed |
to part of a count setting forth a single |
cause of action. but the parties having |
treated II In argument as a demurrer To |
the court. / have so considered IT,
ITO the court the defendant demurrs |
on the ground that II sets forth two sep |
arate causes of, action. viz. trespass and |
assumpsit. AS stated in a previous re- |
script j do not so construe the pleading. |
The action is assumpst. and the pleadcr |
has added the necessary allegations 10 |
show compliance with the requirements OF |
section 1s chapter 223. General Laws.
'The defendant also claims that the |
allegations of the Indebtedness are incon- |
sistent with the allegations OF embezzle- |
nent. / fail to find the inconsistency. |
There is no allegation OF a loan by the |
plaintiff TO the defendant. as the demurrer |
seems to assume but merely an averment |
hat the defendant was indebted to the |
plaintiff That Indebtedness may have |
arisen from the failure OF the defendant |
10 pay to the plaintiff, on demand. tho |
money which came TO his possession by |
virtue of his agency; there is no allega- |
ion OF a loan. |
THE demurrer is overruled" |