Territory of Arizona v. Monroe

CAMPBELL, J. The defendant was indicted for the crime of embezzlement. A general demurrer to the indictment was sustained, and the attorney-general being of the opinion that error was committed to the prejudice of the territory, and that it is important to a correct and uniform administration of the criminal law that this court should decide the point of law involved, has brought this appeal under the provisions of section 1038 of the Penal Code. The indictment was drawn to charge an offense under section 461 of the Penal Code, which is as follows: “Every person intrusted with any property as bailee, tenant, or lodger, or with any power of attorney for the sale or transfer thereof, who'fraudulently converts the same or the proceeds thereof to his own use, or secretes it. or them with a fraudulent intent to convert it to his own use, is guilty of embezzlement.” It was urged upon the hearing upon the demurrer that the indictment is defective for the reason that it does not designate in terms the accused as bailee, tenant, or lodger; but it sets out at length facts which made the accused a bailee, and while the pleader might safely have charged the offense in the language of the statute, the fact that he has used other words conveying the same meaning does, not render the indictment bad. Hinds v. Territory, 8 Ariz. 372, 76 Pac. 469. It was further urged that the indictment is defective for the reason that it does not allege that a demand was made for the return of the property alleged to have been embezzled, and. that the defendant failed to return it. Section 463 of the Penal Code, as it was in force at the time the offense is alleged, to have been committed, read as follows: “A distinct act of taking is not necessary to constitute embezzlement; but no one shall be adjudged guilty of embezzlement until a demand for the return of the property converted or misappropriated shall have been made, on the one alleged to have converted or misappropriated it, and shall fail to return the same on such demand being made. But no such demand shall be necessary if the defendant abscond or absent himself from the place where such embezzlement is alleged to have been committed, or secrete himself so that he cannot be found at such place.” The eourt below evidently entertained the opinion that the offense is not complete until the bailee fails or refuses to return the property upon demand, and therefore that this element of the57 offense should he alleged in the indictment. In onr view, the offense, which is purely statutory, is complete when the property is fraudulently and feloniously converted. Refusal to return the property upon demand has always been held to be evidence, and in some cases indispensable evidence, of intentional conversion. That the legislature intended only to provide that evidence of a demand for and refusal to return the property should be indispensable to a conviction in all cases embraced within the statute, is clear. The demurrer to the indictment, in our opinion, should have been overruled. The judgment entered was, therefore, erroneous. By the statute under which the territory has prosecuted this appeal it is provided that the “supreme court shall not reverse a judgment in favor of a defendant which operates as a bar to future prosecutions for the offense.” Rev. Stats. 1901; Pen. Code, sec. 1038. By section 873 of the Penal Code it is provided that “if the demurrer [to an indictment] be allowed, the judgment shall he final upon the indictment demurred to.” Therefore this judgment is not reversed. KENT, C. J., SLOAN, J., NAVE, J., and DOAN, J., concur.