People v. Converse

42 N.W. 70, 74 Mich. 478, 1889 Mich. LEXIS 673

• Court: Michigan Supreme Court
• Decided: April 19, 1889
• Status: Published

Opinions

Sherwood, C. J.

The respondent was informed against in the county of Calhoun for the crime of embezzlement. 'The information is as follows:

“ The Circuit Court for the County of Calhoun.

“ Herbert E. Winsor, prosecuting attorney for the county of Calhoun, aforesaid, for and in behalf of the people of the State of Michigan, comes into said court in the December term thereof, A. D. 1887, and gives it here to understand and be informed that Eugene M. Converse, late of- the city of Battle Creek, in the county of Calhoun .and State of Michigan, heretofore, to wit, on the twenty-eighth day of July, in the year one thousand eight hundred and eighty-five, at the city of Battle Creek, in said county of Calhoun and State of Michigan, being then and there agent to John E. Dunning and Daniel W. Hall, the executors of the last will and testament of Rice Hall, deceased, and being then and there the agent of them, the said John E. Dunning and Daniel W. Hall, executors -of the last will and testament of Rice Hall, deceased, and not being then and there an apprentice nor other person under the age of sixteen years, did by virtue of his said •employment then and there, and whilst he was such agent as aforesaid, receive and take into his possession certain moneys to a large amount, to wit, to the amount of four thousand dollars, of the value of four thousand dollars, of the property of the said John E. Dunning and Daniel W. Hall as such executors, and which said money came to the possession of the said Eugene M. Converse by virtue of said employment, and the said money then and there fraudulently and feloniously did embezzle and convert to his own use, without the consent of the said John E. Dunning and Daniel TV. Hall, as such executors as aforesaid, his said employers, and that so the said Eugene M. Converse did then and there, in manner and form aforesaid, the said money, the property of the said John E. Dunning and Daniel TV. Hall, as executors as aforesaid, his said employers, from the said John E. Dunning and Daniel TV. Hall, as such executors as aforesaid, feloniously did steal, take, and carry away, contrary to the form of “• the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan.”

On being arraigned, the respondent pleaded to the information as follows:

“ As an attorney at law, I am guilty of embezzlement of thirty-five hundred ($3,500.00) dollars; that being the amount collected and received by me, less my reasonable fees as such attorney for collecting the money.”

Dpon filing the foregoing plea, the circuit judge directed the following entry to be made:

“The People oe the State oe Michigan v. Eugene M. Converse.

“Eugene M. Converse, the respondent in this cause, having been duly arraigned at the bar in open court, and the information being read to him by Herbert E. TVinsor, prosecuting attorney, pleaded thereto “guilty of the embezzlement of money to the amount of three thousand five hundred dollars.*”

And thereupon, after the court had made the usual private examination of the respondent required by statute, after a plea of guilty, Converse was sentenced to five years* imprisonment at hard labor at Jackson. Subsequently, under the direction of this Court, the entire plea made by the respondent when arraigned was incorporated in the record at the circuit, and then respondent removed the record into this Court for review.

He assigns as error, among others, that—

“1. There is no sufficient plea in said cause to form a legal basis for the judgment rendered therein.

“2. The judgment is for a felony, and the plea is for a misdemeanor only, and the judgment is broader than the plea, and the penalty imposed is unauthorized by the plea and statute.

“3. The judgment against the defendant is for embezzlement in the capacity of agent, and the defendant never pleaded guilty of such crime, and he has never been convicted of such crime by a jury."

It is strongly urged by counsel that the information charges the respondent with embezzling $4,000 while acting in. the capacity of agent for the owners, while in fact he only confessed himself guilty by his plea of collecting the money as an attorney at law, and of refusing ^o pay it over to the owners, less his fees for collecting. There is no question but that the information charges the respondent with the crime of embezzlement. It was to this charge, when arraigned, he was called upon to plead. He pleaded guilty of embezzlement. He is a lawyer, and knew the meaning of the word “ embezzlement," and I think there can be no doubt but that he understood when he made his plea that he was pleading guilty to the felony charged. That such was the fact seems to have been verified by the private examination required by statute to be made by the circuit judge before sentencing upon a plea of guilty, and which is shown to have been made in this case. To hold otherwise would be an impeachment of the intelligence of both the prisoner and the court. That the respondent collected the money as attorney is of 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; and in either case, if, after making the collection, he appropriates the money to his own use, with the intention ot depriving the owner of the same, he is guilty of the crime of embezzlement. If this were 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.

I think the conviction in this case was warranted by the plea of the respondent, and that the judgment should be affirmed.

Champlin, Morse, and Long, JJ., concurred with Sherwood, C. J.