Territory of New Mexico v. Eyles

OPINION OP THE 'COURT. WEIGHT, J. 1 The defendant was convicted of embezzlement at the September, 1910, term of the district court for Santa Fe county. The indictment is in- the usual form, charging embezzlement under the statute of the sum of One ITundred and Fifty Dollars ($150.00) of the. property of one Bronson M. Cutting, which said sum it is alleged came into the possession of the defendant by reason of his employment as an agent by the said Bronson M. Cutting. At the conclusion of the evidence for the territory the defendant moved for a peremptory instruction of not guilty, upon the failure of proof as to agencj and felonious intent. This motion was denied. It was again presented at the close of the case, and again denied, to which rulings the defendant excepted. The same questions were again presented to the trial court in the motion for new trial and in arrest of judgment. Numerous errors in the instructions given by the court and in the refusal to give instructions requested by the defendant are assigned. However, in view of our holding in this case, it will not be necessary to consider anything beyond the questions raised on the motion for peremptory instructions preserved in the motions for new trial and arrest ’of judgment. The prosecution of this case was had under the provisions of Section 1122, of the Laws of 1897, which reads as follows: “If any officer, agent, clerk or servant of any incorporated company, or if any clerk, agent or servant of a private person, or. of any copartnership, except apprentices, and other persons under the age of sixteen years, shall embezzle or fraudulently convert to his own use, any money or property of another, which shall have come to his possession or shall be under his care, by virtue of such employment, he shall be deemed, by so doing, to have committed the crime of larceny.” The sole question for determination in this case is, does the testimony establish the élenients of the crime of' embezzlement as defined in the section of the statute above quoted, so as to warrant the verdict of guilty returned by the jury in this case? We have carefully examined the record in this case, and feel constrained to hold that the evidence upon the quetions of agency and intent is so meager as not in law to justify the verdict returned in this case. The record discloses that the defendant was guilty of nothing more serious than a breach of trust. As no useful purpose could be served by a discussion of the evidence or the’lack of evidence upon these two points, we content ourselves with a statement of our conclusions therefrom. The judgment of the lower court is reversed, and the’cause remanded.