State v. Carkin

Whitehouse, J. This is an indictment against the respondent as “ treasurer and collector ” of the town of Appleton in which there is an apparent attempt to charge him with the crime of embezzlement. The defendant filed a general demurrer which was overruled by the presiding justice, and the case comes to this court on exceptions to this ruling. This indictment is based on section seven of chapter 120 of the revised statutes, and contains two counts. In the first count it is alleged that the defendant was “ an officer, to wit, the treasurer and collector of the town of Appleton ” and that by “virtue of his said office and employment he did then and there have, receive and take into his possession certain money to a large amount, to wit, to the amount of $1365, of the property and money of said town.” It will be observed, however, that here there is not only an omission to specify whether he received this money in his capacity as treasurer, or by virtue of his office as collector, but there is an entire absence of any averment whatever that he embezzled or fraudulently converted to his own use either this money or any other. [145] Tliis count, therefore, wholly fails to charge him with a crime by embezzling money, but only credits him with the performance of an official duty in receiving it. The second count like the first, avers that he “was then and there an officer, to wit, the treasurer and collector of the town of Appleton,” but avers that he “ did then and there by virtue of his said office as treasurer .... have receive and take into his possession certain money to a large amount, to wit, to the amount of 81875 .... of the goods and money of the said town of Appleton, then and there unlawfully, fraudulently and feloniously did embezzle and convert to his own use, without the consent of the said town of Appleton.” Here was an evident attempt on the part of the pleader to introduce the indispensable averment of a fraudulent conversion, but by an inadvertent change in the order of the several clauses of the sentence above quoted, and the omission to state the object of the verb “ embezzle and convert,” he again failed to charge that the respondent fraudulently converted the money which he had taken into his possession by virtue of his office as treasurer, or any other money or thing whatsoever. While it is undoubtedly true, as observed by Mr. Bishop, (1 Crim. Proc. § 856) that “ sound sense ” should be consulted to the “disregard of captious objections, in looking for the meaning of the allegations in the indictment,” it is the opinion of the court that such a material omission, as is found in this case, in the language employed to express the gravamen of the crime of embezzlement, ought not to be supplied by intendment. Exceptions sustained. Indictment adjudged lad.