Opinion
No. 5020.
Argued February 6, 1962.
Decided March 6, 1962.
1. In an indictment for embezzlement (RSA 580:28, 29) phrased in the words of the statute and alleging that the respondent fraudulently converted to his own use money of an American Legion organization entrusted to him in his capacity as finance officer the words "fraudulently converted" include an intent to do the act and was descriptive of the motive; and the capacity in which the respondent acted was described with sufficient definiteness.
Indictment charging the defendant with fraudulently converting to his own use the sum of $16,000 in violation of RSA 580:28, 29.
The material portions of the indictment allege: ". . . that Henry T. Yell . . . at Seabrook, in the County of Rockingham, aforesaid, with force and arms, did from December 31, 1955 to on or about May 23, 1961 fraudulently convert to his own use money belonging to the Raymond E. Walton Post, No. 70, American Legion, Seabrook, New Hampshire, an association of persons levying dues upon its members, of the sum of Sixteen Thousand ($16,000.00) Dollars of the lawful currency of the United States of America, said money having been entrusted to him, the said Henry T. Yell in his official capacity as Finance Officer of said Raymond E. Walton Post No. 70, American Legion."
The defendant moved to quash the indictment for the following reasons: "Said indictment does not fully, plainly, substantially, and formally describe the offense alleged or set forth therein; Said indictment does not allege or set forth the facts necessary to a fair and full description of the offense charged; Said indictment so describes the alleged offense as to cause uncertainty as to the matters relied upon in support of the indictment; Said indictment is a statement of legal conclusion and is not a positive, direct and sufficient statement of the alleged offense." All questions of law presented by this motion were reserved and transferred without ruling by Morris, J.
William Maynard, Attorney General, Irma A. Matthews, Law Assistant, and Lawrence W. Guptill, Jr., county attorney (Mrs. Matthews orally), for the State.
Thomas J. McIntyre (by brief and orally), for the defendant.
The principal contention of the defendant is that the indictment fails to allege that the embezzlement was committed with criminal intent and that the words "fraudulently convert" are not sufficient. In indictments for offenses created by statute it is generally sufficient to describe the events in the words of the statute. State v. Goodwin, 101 N.H. 252, 253. The exception to the general rule is where the capacity in which the defendant acted is alleged in too general terms and those too vague to enable the defendant to prepare for trial in the absence of additional specifications. State v. Goodwin, supra.
The word "fraudulent" in an indictment charging embezzlement includes an "intent" to do the act and is descriptive of the motive. See 17A Words Phrases, "Fraudulently," intent (p. 164); People v. Swenson, 127 Cal.App.2d 658.
The defendant here was charged with fraudulently converting to his own use $16,000 of funds belonging to the Raymond E. Walton Post, No. 70, American Legion of Seabrook, which had been entrusted to him in his official capacity as finance officer. The indictment follows the wording of the statute and the capacity in which the defendant acted is described with sufficient definiteness and fully states all the essential elements of the offense charged. State v. Farwell, 102 N.H. 3, and cases cited.
Exceptions overruled.
All concurred.