In re Converse

42 F. 217, 1890 U.S. App. LEXIS 2141

• Court: U.S. Circuit Court for the District of Eastern Michigan
• Decided: March 10, 1890
• Status: Published

Opinion

BrowN, J.

Petitioner claims to be held in confinement in violation of the fourteenth amendment to the constitution of the United States, which declares that no .state shall “deprive any person of life, liberty, or property without due process of law,” and demands the interposition of this court under Rev. St. § 753, which extends the right of habeas corpus to every person held in custody “in violation of the constitution, or of a law, or a treaty of the United States.” This jurisdiction, which .requires of us to pass upon rulings made by state courts in cases not only within their cognizance, but within their exclusive jurisdiction, is one we would gladly disclaim, if it were within our power, and, so far as it is a matter of discretion, we have uniformly refused to exercise it, until the petitioner has exhausted his remedy in the state tribunals by an appeal to the supreme court. This discretion was declared by the supreme court to exist in Ex parte Royall, 117 U. S. 249, 6 Sup. Ct. Rep. 734. In this case, however, the petitioner has been refused relief by the supreme court of the state, and we do not feel at liberty to deny him the right to inquire of us whether his imprisonment was imposed by due process of law, or by the arbitrary and unauthorized act of the state court.

We suppose it will not be questioned that if a party should be sentenced without a trial, upon a plea of not guilty, the constitutional provision would be violated. So, if he were arraigned for one crime, and should plead guilty to another, — as, for instance, if he were charged with burglary, and should plead guilty to larceny, — it would be a plain abuse of power to sentence him either for the burglary to which he did not plead guilty, or for the larceny for which he had not been indicted. Upon the other hand, if he were indicted in general words, and he pleaded guilty to a particular crime, falling within those general words, it would not be illegal to sentence him under the indictment. As, for example, if he were indicted for embezzlement as “an officer of a bank,” and lie pleaded guilty of embezzlement as “cashier” of such bank, in such case liis description of himself -would fall clearly within the general words of the indictment, and his plea would only render it more certain that he did commit the offense charged, and the sentence upon such plea would not be illegal; nor would it change the aspect of the case if it were shown that the offense of embezzlement by a cashier was provided for in a separate statute. In other words, it is no defense to an indictment under one statute that the prisoner might also be punished under another.

In tills case the prisoner was charged with embezzlement as the “agent” of Dunning and Hall, executors of the last will and testament of itice Hall, deceased, and pleaded guilty of “embezzlement of $3,500 as an attorney at law, that being the amount collected and received by me, loss my reasonable fees as such attorney for collecting the money.” Another statute provided a different punishment for the receipt and retention of money collected by an attorney at law after demand is made for tbo same. The question, then, which confronted the court, was whether an attorney at law is an “agent,” within the meaning of the first statute, and can be punished as such for embezzlement in failing to pay over moneys collected and received by him in his capacity as attorney at law. This question was answered in the affirmative, Mr. Justice CaMpbell dissenting. Mr. Justice SheRwood, in delivering the opinion of the court, observes:

“That the respondent collected the money as attorney is ol' no consequence. If the act of the respondent complained of contained all the elements of embezzlement, he -was guilty of the crime, and was properly convicted. If an attorney collects money for his client, he, in so doing, acts as the agent of his client as well as his attorney; if in either case, after making the collection, he appropriates the money to his own use with the intention of depriving the owner of the same, he is guilty of the crime of embezzlement. If this wore not so, no attorney could be convicted of the embezzlement of his client's money, and this was certainly never the intention of the legislature in passing the statute creating the crime.” People v. Converse, 42 N. W. Rep. 70.

In other words, tbo learned court construes the statute as covering an embezzlement by an attorney at law. Now, while this opinion may perhaps he against the weight of authority, which seems to hold that the word “agent”' in this statute has no application to auctioneers, (Com. v. Stearns, 2 Metc. 344,) collectors of bills, (Com. v. Libbey, 11 Metc. 64,) to solicitors intrusted by clients with money to invest upon mortgage, (Queen v. Newman, 8 Q. B. Div. 706; Regina v. Cooper, L. R. 2 Cr. Cas. 123,) or to attorneys at law, (State v. McLane, 43 Tex. 404,) still it is a construction placed by the supreme court of the state upon a statute of such state, and is as binding upon this court as if the opinion were, pronounced in an ordinary civil suit. As the prisoner di1, in fact, plead guilty to embezzlement as an attorney at law, and as the court has held that such offense did fall within the statute, there has been no violation of the constitutional provision, and the petition must be denied.