MATHEWS, Circuit Judge.
Appellant was indicted for embezzling a coat. A demurrer to the indictment was overruled, a plea of not guilty was entered, a trial was had, a motion for a directed verdict was denied, a verdict of guilty was returned, a motion for a new trial was denied, and judgment was entered sentencing appellant to be imprisoned for ten years. From that judgment this appeal is prosecuted.
Nine alleged errors were assigned
The indictment stated that on September 22, 1943, in the Fourth Judicial Division, Territory of Alaska, appellant, "being then and there the agent of the Fairbanks Agency Company, an Alaskan corporation engaged, among other lines, in the business of storing furs for its customers, at Fairbanks, Alaska, did, by virtue of such employment, come into the care of certain personal property of the value of more than thirty-five dollars ($35.00), to-wit, of the value of four hundred dollars ($400.00), said personal property being that certain Russian dyed ermine coat then and there stored with said Fairbanks Agency Company by Mrs. Milton Brown, the owner thereof, and she, the said [appellant], after obtaining accessibility to, and the care of said coat as aforesaid, did then and there wilfully, unlawfully and feloniously embezzle and fraudulently convert said coat to her own use, contrary to the form of the statute in such cases made and provided."
The statute in such cases made and provided is § 4805 of the Compiled Laws of Alaska 1933, reading as follows: "If any officer, agent, clerk, employee, or servant of any private person or persons, copartnership, or incorporation shall embezzle or fraudulently convert to his own use, any money, property or thing of another which may be the subject of larceny, and which shall have come into his possession or be under his care by virtue of such employment, such officer, agent, clerk, employee or servant shall be deemed guilty of embezzlement, and upon conviction thereof, if the property shall exceed in value thirty-five dollars, shall be punished by imprisonment in the penitentiary not less than one nor more than ten years; * * *"
Appellant contends that the indictment was defective because it did not state that appellant was the agent, clerk, employee, servant or fiduciary of Mrs. Milton Brown, owner of the coat described in the indictment,
There was evidence tending to prove that from about the middle of April, 1943, until October 7, 1943, appellant was the agent of the Fairbanks Agency Company, an Alaska corporation engaged in business at Fairbanks, Alaska; that from June 22, 1943, until an undisclosed date prior to October 7, 1943, the coat described in the indictment
Appellant contends that the evidence was insufficient because it did not prove that appellant was the agent, clerk, employee, servant or fiduciary of Mrs. Milton Brown, or that appellant had custody or possession of the coat at the time of its embezzlement, or that appellant was the agent of the Fairbanks Agency Company or anyone else for the purpose of having such custody or possession. Since, as we have held, it was unnecessary to state these facts in the indictment, proof thereof was likewise unnecessary.
As appellant points out, there were conflicts in the evidence. With these, however, we are not here concerned, as they were for the jury, not the court, to resolve.
Appellant points out that the evidence failed to show the exact date on which the crime charged in the indictment was committed and hence failed to show that it was committed on the date laid in the indictment — September 22, 1943. The evidence showed, however, that the crime was committed (if committed at all) within three years next preceding the date
We conclude that the evidence was sufficient to warrant appellant's conviction, and that the motion for a directed verdict was properly denied.
Assignment 2 is that the court erred in refusing to instruct the jury, as requested by appellant, "that under an indictment for the crime of embezzlement by agent, before you can find a verdict of guilty, it must be shown that the article or property embezzled was in the actual possession of the defendant at the time of said embezzlement, mere care or custody of the article being insufficient." The requested instruction misstated the law and was properly refused; for in Alaska, as shown above, an agent may be guilty of embezzling property of which he never had actual possession.
Assignment 3 is that the court erred in overruling the demurrer to the indictment. The ground of the demurrer was that the indictment did not state facts sufficient to constitute the crime of embezzlement. That ground having been shown to be untenable, this assignment requires no further notice.
Assignment 4 is that "the court erred in rendering and entering judgment and commitment against [appellant.]" This
Assignment 5 is that the court erred in stating in the judgment that appellant was "convicted on verdict of the offense charged in the indictment in the above entitled cause, to-wit: embezzlement by agent or employee." What the court actually stated was that appellant was "convicted on verdict of guilty of
Assignment 6 asserts that the court erred in rejecting the following testimony of appellant's witness, Helen Callahan: "In August of 1943, [appellant] came to my place of business with her fur coat to have a small tear in the fur mended. I mended the coat for her, and I did not want to charge her anything, as the job only took a few minutes, but she insisted on paying me a dollar or two, I have forgotten how much. [At this point, the witness was shown appellee's Exhibit A,
Actually, this testimony was not rejected, but was admitted. Appellant thereupon requested the court to permit the witness to open the lining of the coat (Exhibit A) "to see if the witness could identify her work." The request was denied. Assignment 6 sets out this ruling, but does not assert that it constituted error. Appellant is not shown to have been prejudiced by the ruling. Hence, even assuming that it constituted error, and that the error was properly assigned, it does not require reversal of the judgment.
Assignment 7 states that "the evidence shows that [appellant] was being indirectly accused and tried for the robbery of the safety deposit boxes of the Fairbanks Agency Corporation." The evidence shows no such thing.
Assignment 8 states that the sentence was too severe. As the sentence was within the limits allowed by the statute (§ 4805), the question of its severity is not before us.
Assignment 9 is that the court erred in denying the motion for a new trial. The motion was addressed to the trial court's discretion,
DENMAN and STEPHENS, Circuit Judges, concur in this opinion, but we do not wish to be understood as holding that it would be improper for this court or any judge thereof to comment upon the severity of a sentence if the facts of the case as revealed by the record would seem to justify it.