Crofton v. State

Simmons, Justice.

William Orofton was indicted for the offence of larceny after trust. Upon the trial of the case, the jury returned a verdict of guilty. Defendant moved for a new trial upon the several grounds contained in the motion. The presiding judge overruled the motion upon all the grounds, and. the defendant excepted, and assigns as error the order of the judge overruling said motion.

1. We see no error in those parts of the charge excepted to, nor to the refusal to give in charge the written request, of the counsel for the defendant.

2. The only question in the case that has troubled ns is, the’first and second grounds, viz. that the verdict is contrary to the law and the evidence ; that it is without evidence to support it. This arises from the ambiguity of the allegations in the indictment. The indictment charges that the defendant, being entrusted by Allen with ninety-five cents in money, consisting of silver and nickels, of the value of ninety-five cents, and the property of Allen, for the purpose of making • change and returning said money to the said Allen, did, after having been entrusted with said money for the purpose aforesaid, wrongfully and fraudulently convert forty-five cents of said money to his own use, to the injury, etc. It is contended by the counsel for the plaintiff in error that the evidence in the case does not sustain the allegation, but makes an entirely different state of facts from those set out therein. He contends that the indictment charges that the ninety-five cents was entrusted for the purpose of making change and returning the change when made, whereas, he contends, the proof shows that the money converted was not the change to be obtained by the defendant and returned to Allen, but only a portion of the ninety-five cents entrusted to him to make change, and that there is, therefore, such a variance between the proof and the allegations as makes it fatal.

W'hilst the indictment is rather loosely drawn in regard to the trust to be executed, we think it is sufficient, and that there is no such variance between it and the proof as to render a conviction under it void. The meaning of the charge in the indictment is, that the defendant was entrusted with the money to make change, but that he failed’ to do so, and instead of doing the act he was entrusted to do, he converted a portion of the money entrusted to him-with which to make the change, without even attempting’ to execute the trust. Such a trust would necessarily include, by implication, an undertaking to return the sa!me: money if not used in making change, and that implied iin-1 dertaking would be a part of the trust. This is evidently the meaning of the charge in the indictment, and we think the evidence sustains it.

Judgment affirmed.