Opinion
09-23-1901
STATE v. NORKEWICZ.
William P. Kurtz, for the State. Charles F. Curley, for defendant.
Anton Norkewicz was indicted for embezzlement. Verdict, "Not guilty."
The first count of said indictment was in the following form, to wit: "The grand inquest for the state of Delaware, and the body of Newcastle county, on their oath and affirmation, respectively do present that Anton Norkewicz, late of Wilmington hundred, in the county aforesaid, on the 15th day of July, in the year of our Lord 1900, with force and arms, at Wilmington hundred, in the county aforesaid, then and there being an agent to the Polish Library Association, a corporation of the state of Delaware, did, by virtue of his said employment as agent thenand there, and 'whilst he was so employed as agent as aforesaid, receive certain paper money, the kind and denomination of which is to the jurors unknown, of the aggregate value of thirty-two dollars and eighty cents, lawful money of the United States of America, sundry coins, the denomination of which is to the jurors unknown, of the aggregate value of thirty-two dollars and eighty cents, like lawful money of the United States of America, then and there belonging to the said the Polish Library Association, for and in the name and on the account of the said the Polish Library Association, and which was then and there in his custody as the agent to the said the Polish Library Association, and the said money then and there unlawfully did embezzle; against the form of an act of the general assembly in such case made and provided, and against the peace and dignity of the state." The second, third, and fourth counts of the indictment were similar to the first count, except that the defendant was described therein as a servant, instead of an agent, to the Polish Library Association.
At the trial, Mr. Curley, for the defendant, at the conclusion of the state's evidence, made a motion that the court instruct the jury to find the defendant not guilty, because of a variance between the proof and the allegations in the indictment. In that the indictment alleged the embezzlement of "certain paper money" "of the aggregate value of thirty-two dollars and eighty cents, lawful money of the United States of America, sundry coins * * * of the aggregate value of" the same amount, etc., "belonging to the said the Polish Library Association," making a total of $65.60, while the proof was that Norkewicz received from the secretary of the association certain aluminium checks, worth, in exchange for beer and other things on sale at the said association rooms, the sum of $32.80; that there was, therefore, a variance as to the amount, also as to the description, of the property, in the indictment; that "sundry coin" laid therein was not sustained by proof of aluminium checks.
Mr. Kurtz: The proof is that the defendant sold these checks, and received money for the same. I believe the testimony does not disclose whether he received coin or paper money, but I contend under this statute (Rev. Code, p. 942) that is mere surplusage.
Argued before LORE, C J., and PENNEWILL and BOYCE, JJ.
William P. Kurtz, for the State.
Charles F. Curley, for defendant.
LORE, C. J. The majority of the court think the proof does not sustain the indictment. It is true, under the statute, that you are not bound, in describing the property embezzled, to say anything more than "money," but when you do particularize and describe the kind of money, as you have done here, that becomes a material part of your averment, and must be proved as laid. You made it material by your definition of the offense; and, having so defined it, you are not protected by this statute. That principle is laid down in 1 Whart. Cr. Law, § 629, as follows: "An allegation in an indictment which describes, defines, qualifies, or limits a matter material to be charged is a descriptive averment, and must be proved as laid. Thus, in an indictment for resisting a deputy sheriff in the discharge of his duty, an averment that the sheriff was 'legally appointed and duly qualified,' Is descriptive and must be proved; as in such case the whole averment of an assault upon a deputy sheriff cannot be omitted without affecting the charge against the prisoner." And you will note that the language of this statute (Rev. Code, p. 942) Is: "In every indictment for a violation of this section, when the offense shall relate to coin or notes circulating as money, it shall be sufficient to allege the embezzlement to be of money, without specifying any particular coin, or notes circulating as money; and such allegation, so far as regards the description of the property, shall be sustained." It does not say if you make it more particular in description that it must not be proved as laid. The court hold that the proof in this case does not sustain the indictment We therefore direct you to return a verdict of not guilty.
Verdict "Not guilty."