{ "id": 5332911, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Jack MOSS, Defendant-Appellant", "name_abbreviation": "State v. Moss", "decision_date": "1971-07-30", "docket_number": "No. 662", "first_page": "42", "last_page": "45", "citations": [ { "type": "official", "cite": "83 N.M. 42" }, { "type": "parallel", "cite": "487 P.2d 1347" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "82 N.M. 543", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5334220 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0543-01" ] }, { "cite": "168 P. 377", "category": "reporters:state_regional", "reporter": "P.", "year": 1917, "opinion_index": 0 }, { "cite": "34 Cal.App. 599", "category": "reporters:state", "reporter": "Cal. App.", "case_ids": [ 2029506 ], "year": 1917, "opinion_index": 0, "case_paths": [ "/cal-app/34/0599-01" ] }, { "cite": "9 L.Ed.2d 232", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1962, "opinion_index": 0 }, { "cite": "83 S.Ct. 293", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1962, "opinion_index": 0 }, { "cite": "371 U.S. 924", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 451111, 451049, 450737, 450836, 451286 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/us/371/0924-04", "/us/371/0924-05", "/us/371/0924-02", "/us/371/0924-01", "/us/371/0924-03" ] }, { "cite": "70 N.M. 108", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2851778 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/70/0108-01" ] }, { "cite": "59 N.M. 437", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1589316 ], "weight": 2, "year": 1955, "opinion_index": 0, "case_paths": [ "/nm/59/0437-01" ] }, { "cite": "81 N.M. 710", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358313 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/nm/81/0710-01" ] }, { "cite": "80 N.M. 748", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5355345 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0748-01" ] }, { "cite": "34 A.L.R. 189", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1923, "opinion_index": 0 }, { "cite": "220 P. 505", "category": "reporters:state_regional", "reporter": "P.", "year": 1923, "opinion_index": 0 }, { "cite": "114 Kan. 660", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 1271423 ], "year": 1923, "opinion_index": 0, "case_paths": [ "/kan/114/0660-01" ] }, { "cite": "206 Kan. 190", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 37654 ], "weight": 3, "year": 1970, "opinion_index": 0, "case_paths": [ "/kan/206/0190-01" ] }, { "cite": "49 N.M. 196", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841590 ], "weight": 2, "year": 1945, "opinion_index": 0, "case_paths": [ "/nm/49/0196-01" ] }, { "cite": "80 N.M. 262", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5355298 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0262-01" ] }, { "cite": "77 N.M. 433", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2809731 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/77/0433-01" ] }, { "cite": "52 N.M. 15", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1579470 ], "weight": 7, "year": 1948, "opinion_index": 0, "case_paths": [ "/nm/52/0015-01" ] }, { "cite": "79 N.M. 138", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2749025 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0138-01" ] } ], "analysis": { "cardinality": 471, "char_count": 8674, "ocr_confidence": 0.686, "pagerank": { "raw": 3.908848426740968e-07, "percentile": 0.9020635952134661 }, "sha256": "2d79f6867a8c8f1d8a2d748b16432882a698def6b22ceab70de1586eafa6d7f4", "simhash": "1:8a3dbcaf89ab8f61", "word_count": 1394 }, "last_updated": "2023-07-14T17:09:20.437308+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and SUTIN, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Jack MOSS, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nConvicted of embezzlement, \u00a7 40A-16-7, N.M.S.A.1953 (Repl. Vol. 6), defendant appeals. Three of the five points raised concern the elements of embezzlement. The fourth point challenges the sufficiency of the evidence; the fifth point asserts the jury should have been instructed on the lesser offense of attempted embezzlement.\nElements of embezzlement.\nSection 40A-16-7, supra, states in part:\n\u201cEmbezzlement consists of the embezzling or converting to his own use of anything of value, with which he has been entrusted, with fraudulent intent to deprive the owner thereof.\u201d ,\n(a) Defendant contends this statutory definition is incomplete; that an additional item is required. Defendant claims the \u201cintent to deprive\u201d requires an intent to \u201cpermanently\u201d deprive. He asserts the Legislature intended the larceny and embezzlement statutes to supplement one another, that an intent to deprive the owner of his property \u201cpermanently\u201d is a requisite of larceny, see State v. Eckles, 79 N.M. 138, 441 P.2d 36 (1968), and thus an intent to \u201cpermanently\u201d deprive is a requisite element of embezzlement.\nState v. Prince, 52 N.M. 15, 189 P.2d 993 (1948) states that a fraudulent intent to deprive the owner of his property is one of the essential elements of embezzlement. Prince does not state that the intent must be to \u201cpermanently\u201d deprive. Further, the power to define crimes is a legislative function. State v. Allen, 77 N.M. 433, 423 P.2d 867 (1967); State v. Dennis, 80 N.M. 262, 454 P.2d 276 (Ct.App.1969). The Legislature did not include an intent to \u201cpermanently\u201d deprive in its definition of the crime. A legislative intent to do so cannot be ascertained by comparing the embezzlement statute with the larceny statute, \u00a7 40A-16-1, N.M.S.A.1953 (Repl. Vol. 6, Supp.1969), because larceny is defined in terms of stealing, see State v. Shroyer, 49 N.M. 196, 160 P.2d 444 (1945), and comparable language is not used in the embezzlement statute.\nWe found no New Mexico case which defines the requisite intent under \u00a7 40A-16-7, supra. State v. Piper, 206 Kan. 190, 477 P.2d 940 (1970) and State v. Pratt, 114 Kan. 660, 220 P. 505, 34 A.L.R. 189 (1923), indicate that intent to \u201cpermanently\u201d deprive is not a requisite element of embezzlement because the gist of the offense \u201c * * * is the intentional misappropriation to his own use by the wrongdoer while in lawful possession. * * * \u201d State v. Piper, supra. Similarly, \u00a7 40A-16-7, supra, requires a conversion to the wrongdoer\u2019s use with fraudulent intent to deprive the idwner. This requirement does not include a requirement'that the intent be to \u201cpermanently\u201d deprive the owner., Compare \u00a7 64\u2014 9-4(a), N.M.S.A.1953 (Repl.. Vol. 9, pt. 2), and State v. Austin, 80 N.M. 748, 461 P.2d 230 (Ct.App.1969).\n(b) To have violated \u00a7 40A-16-7, supra, defendant must have embezzled or converted to his own use a thing of value \u201cwith which he has been entrusted.\u201d The jury was so instructed. Defendant claims that \u201centrusted\u201d was not defined. Absent a clearly expressed legislative intent requiring otherwise, \u201centrusted\u201d is to be given its usual, ordinary meaning. Tafoya v. New Mexico State Police Board, 81 N.M. 710, 472 P.2d 973 (1970). The common meaning of \u201centrust\u201d is to \u201c * * * commit or surrender to another with a certain confidence regarding his care, use, or disposal. * * *\u201d Webster\u2019s Third New International Dictionary (1966). This common meaning did not require an instruction defining it. Compare State v. Nolan, 59 N.M. 437, 285 P.2d 798 (1955).\nDefendant asserts the common meaning of .\u201centrusted\u201d is not applicable. Plis requested instruction, which was refused, read:\n\u201cFor an entrustment \u25a0 it must be shown that the accused occupied a designated fiduciary relationship and that the property came into his possession by reason of this fiduciary relationship, employment or office.\u201d\nThis requested instruction appears to be taken from State v. Prince, supra. Defendant asserts the language in Prince, similar to that of the requested instruction, is used in a technical sense; that there must be a \u201cfiduciary\u201d in a legal sense, or a designated relationship of special trust and confidence. Here, the relationship between the owner of the property (a car) and defendant was that of prospective buyer and seller. There is evidence that defendant was allowed to \u201ctry it- out;\u201d \u201c * * * I told him that he could drive it around the block and see if he liked it. That is about as. far as that went.\u201d' Defendant claims the evidence in this case fails to show he was \u201centrusted\u201d with the car in any special or technical sense, and that such a special meaning of \u201centrusted\u201d is applicable.\nWe find nothing in the language used in State v. Prince, supra, in the discussion concerning entrustment, to indicate entrustment has a special or technical meaning. The accused must occupy a designated fiduciary relationship if a statute so requires, or a general fiduciary relationship if that is all the statute requires. Further, the property must come into the accused\u2019s possession by reason of that relationship. Fiduciary, in its common meaning, is no more than holding in trust or confidence. See Webster\u2019s Third New International Dictionary, supra. Thus, State v. Prince, supra, did not impose the technical view of \u201centrusted\u201d for which defendant contends. Compare State v. Peke, 70 N.M. 108, 371 P.2d 226, cert. denied 371 U.S. 924, 83 S.Ct. 293, 9 L.Ed.2d 232 (1962).\nState v. Prince, supra, not having imposed a special or technical meaning to \u201centrusted\u201d, the rule which disposes of this contention1 is \u2014 that the usual, ordinary meaning of \u201centrusted\u201d is applicable unless there is a clear expression of legislative intent requiring otherwise. Here, there is nothing indicating the. Legislature intended other than the usual, ordinary meaning, and, thus, that meaning is applicable here. This result, in our opinion, is consistent with State v. Prince, supra.\n(c) Defendant asserts that where the time for return of the property is indefinite, or where conversion is not established by other proof, the prosecution must prove a \u201cdemand\u201d for return of 'the property before the misappropriation can amount to embezzlement. He asserts such a rule is applicable under the facts of this case. He admits that \u00a7 40A-16-7, supra, by its wording, does not impose this requirement but asserts such a requirement should be added by this court.\nDisregarding the question of this court\u2019s authority to impose requirements- in addition to those set by the Legislature in defining the crime, defendant\u2019s position confuses an evidentiary matter with the elements of the crime. Proof of a demand and a failure to return the property may be evidence of embezzlement because such proof is material to the questions of conversion of the property and a fraudulent intent to deprive the owner of his property. Such a demand and failure to return is not an element of the crime separate from and in addition to these elements. People v. Crane, 34 Cal.App. 599, 168 P. 377 (1917).\nDefendant\u2019s attack on the elements of embezzlement is without merit.\nSufficiency of the evidence.\nDefendant\u2019s attack on the sufficiency of the evidence is predicated on his contention that there must have been an intent to \u201cpermanently\u201d deprive the owner of his property and that \u201centrusted\u201d has a special or technical meaning. Having rejected defendant\u2019s viewpoint as to these two items, the basis for the attack fails, and the evidence need not be reviewed.\nAttempted embezzlement.\nThe trial court refused to instruct the jury on attempted embezzlement. Defendant claims this refusal was error because there was evidence justifying submission of the issue of \u201cattempt\u201d \u2014 that is, that the embezzlement was not consummated. See \u00a7 40A-28-1, N.M.S.A.1953 (Repl. Vol. 6). The evidence is undisputed that defendant was loaned the car and hadn\u2019t returned it more than three days later. While conflicting inferences may be drawn from the evidence as to whether he converted the car to his own use with the requisite intent, this evidence shows that defendant was either guilty of embezzlement or no crime, at all. The evidence did not support an issue of \u201cattempt.\u201d See State v. Andrada, 82 N.M. 543, 484 P.2d 763 (Ct.App.1971) and cases therein cited.\nThe judgment and sentence is affirmed.\nIt is so ordered.\nHENDLEY and SUTIN, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Thomas B. Root, Albuquerque, for defendant-appellant.", "David L. Norvell, Atty. Gen., Jay F. Rosenthal, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "487 P.2d 1347\nSTATE of New Mexico, Plaintiff-Appellee, v. Jack MOSS, Defendant-Appellant.\nNo. 662.\nCourt of Appeals of New Mexico.\nJuly 30, 1971.\nThomas B. Root, Albuquerque, for defendant-appellant.\nDavid L. Norvell, Atty. Gen., Jay F. Rosenthal, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0042-01", "first_page_order": 168, "last_page_order": 171 }