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Indictment or Information

At common law, an indictment is a formal document by which a state sets out the claim that a person has committed a crime.  An indictment must give a defendant sufficient notice of the crime that he has allegedly committed so that the defendant can prepare a defense[i].  Embezzlement is the fraudulent conversion of property by one who has lawfully acquired possession of it for the use and benefit of the owner.  The relation between the accused and the owner must be a fiduciary one.

Embezzlement is a crime unknown to the common law[ii].  The offense depends entirely upon statutory enactments.  Where a statute states the elements of a crime, it is generally sufficient to describe such crime in an indictment using the language of the statute.  That does not mean that minute details must be set out in the indictment.  In State v. Blakemore[iii], the court observed that “in charging the offense of embezzlement, an indictment must follow substantially the language of the statute by which the offense is created, which is all that is necessary”.

The court can order a bill of particulars when an indictment for embezzlement charges the offense in general terms.  A bill of particulars is a formal, written statement of charges or claims by a prosecutor given upon the accused’s formal request to the court for more detailed information.  The defendant in a criminal case cannot as a matter of right claim a bill of particulars.  The granting of such a bill is the discretion of the court[iv].  However, the bill of particulars is not considered a part of the pleadings.  An indictment is neither strengthened nor weakened by a bill of particulars.  The bill of particulars has the effect of narrowing the indictment as to the time within which the act alleged constituting the offense can be proven.

An indictment charging embezzlement should describe the property which is the subject matter of the offense.  The property must be described with enough particularity to enable the court to determine which property is being referenced.  Through this description a defendant can be informed as well.  Moreover, an indictment for embezzlement must specify from whom the property was embezzled.  Ownership of property is an element constituting an offense of embezzlement.  The indictment must also specify the date of the alleged offense.  A request for bill of particulars can be made to ascertain the date of collection of embezzled amount.  However, a failure to specify a particular date is not prejudicial when the accusation sets out the final picture of the alleged embezzlement.

In order to constitute embezzlement, the accused must be occupying a fiduciary relation with the owner of the property[v].  Thus in an indictment for embezzlement, the fiduciary relation of the accused must be clearly stated.  It does not mean that particulars of the relation must be stated.  Mere mention of the fiduciary relation with the owner of the property is enough to establish the status of the accused.

Most of the statutes set the intention of the accused as an essential element constituting the offense of embezzlement.  In such states, the indictment must clearly state the intention of the accused.  It is not necessary for the prosecution to allege or prove such intent to sustain a conviction, where the statute does not prescribe that the intention of the accused is an essential element constituting the offense of embezzlement.

When several distinct embezzlements are set forth in the same count of an indictment or information, the charge is duplicitous.  A charge in duplicate is subject to being quashed[vi].

It is a rule of universal observance in the administration of criminal law that a defendant must be convicted of the particular offense charged in the bill of indictment[vii].  However, in case of a fatal variance, it can be taken advantage of by motion for judgment as of non-suit[viii].

[i] People v. Zupancic, 192 Colo. 231, 235 (Colo. 1976)

[ii] State v. Harmon, 106 Mo. 635 (Mo. 1891)

[iii] 226 Mo. 560 (Mo. 1910)

[iv] State v. Joseph, 100 W. Va. 213 (W. Va. 1925)

[v] State v. Ives, 128 La. 273, 274 (La. 1911)

[vi] Critchfield v. People, 91 Colo. 127, 131 (Colo. 1932)

[vii] State v. Muskelly, 6 N.C. App. 174, 176 (N.C. Ct. App. 1969

[viii] State v. Cooper, 275 N.C. 283, 167 S.E. 2d 266

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