Evening star., 1926-06-11
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In q number Of cases, took out a so
licitor's license for the purpose OF
writing his own bonds is not disputed
and Mr.. Fenning admits in his OWL
testimony that he collected commits
sions on the premiums Of these bonds
in the case Of World War veterans
alone amounting to approximately
$4,000. no part of which has ever been
returned to their estates.
He thereby placed himself in the
position in which his personal interest
TO write large bonds and getting the
premiums confiicted with his duties
TO his ward to keep down the size of
the bond and thereby lessen the
premium. In this situation Mr.. Fen
ming was secretly in the service of the
bonding company, rendering valuable
service to 1t and to himself at the eX-
penSe Of his ward.
TO be secretly in the service Of the
opposite party while the agent is act
ing ostensibly for the principal only
is q fraud upon the latter and a
breach of public morals that the law
will not permit ferguson VS.. Gooch,
81 Va. L.
Questions Acceptance of Fees.
1T is a significant fact bearing on
the character of said Fenning that
though, up to 1915, he had handled
the estates of insane wards for Is
years and had been collecting com
missions on funds of his wards in
vested by him, that after the decision
of the auditor, which was affirmed by
the court in the Hoff case in 1915. he
did not return a penny Of the money
that he had received for Is years to
any of the estates of his wards Every
cent collected by Mr.. F'enning for the
15 years preceding the decision of
the auditor in the Hoff case has been
retained by him, Notwithstanding his
duty to Immediately ascertain and pay
into the estates Of his helpless de-
pendents the money that he had ad-
mittedly taken and Notwithstanding
the further fact that out of the estates
of the insane World War veterans
alone, for whom he is guardian, he
has received commissions approximate
ing 100000 since 1920, for which the
record shows that he has rendered his
wards practically no personal service.
Throughout his entire service to
his wards, by being the agent of the
bonding company which wrote his
bonds. he has been keeping himself
in the position where his personal in
terests We're antagonistic to his trust.
1T having been admitted that a
sum aggregating IS, 900 or more has
been received by Mr.. Fenning during
he past five years as premiums on
bonds. which premiums were paid out
Of the funds of his wards, the next
question is whether he is guilty of
embeZzement under section Sal of
the code in apprOpriating that amount
of money to his own use.
The Court of Appeals Of the District
of Columbia in the case of United
States VS.. Henry (47 Washington Law
Reporter, 297) has held that any num-
ber of separate acts of embeZzlement
may be included within the same in
dictment.
Quotes District Code.
Section S41 of the District of Co
lumbia code is as follows:
Any executor. administrator,
guardian, trustee, receiver, collector
or other officer into whose possession
money, securities. or other property
Of the property or estate of any other
person may come by virture of his
own office or employment who shall
fraudulently convert or appropriate
the same to his own use shall forfeit all
right or claim to any commissions.
costs, and charges thereon, and shall
be deemed guilty Of embezzlement of
the entire amount or value of the
money or other property so coming
into his possession and converted or
appropriated to his own use, and shall
be punished by a fine not exceeding
$1,000 or by Imprisonment not exceed
ing 10 years. or both.
This section of the code is similar
TO section S34, and there have been
a number of decisions of the Court of
Appeals applying these sections TO
cases of appropriation by fduciaries
Of the funds of their wards. Under
the construction put on these sections
by the Court of Appeals of the Dis
trict of Columbia the Government
does not have to allece or prove guilty
knowledge. 1t is not necessary to
prOye or alleCe in the Indictment that