State v. Curtin

Citations

• 28 Del. 518
• 5 Boyce 518
• 95 A. 232
• 1914 Del. LEXIS 53

Syllabus

<p>1. Witnesses—Competency—Obligation of Oath.</p> <p>A prosecuting witness, who, in answer to questions by the court, replied that he believed in “an overruling intelligence,” “in the solemnity of an oath,” and in the Bible, was qualified to take an oath.</p> <p>2. Embezzlement—Distinguished from “Larceny”.</p> <p>“Embezzlement” is a fraudulent appropriation of another’s property by a person to whom it is intrusted, or into whose hands it has lawfully come and differs from “larceny”, in that the original taking of the property is lawful, or with the consent of the owner, while in larceny the felonious intent must have existed at the taking.</p> <p>3. Embezzlement—Embezzlement by Agent—Question for Jury— Demand and Refusal.</p> <p>In a prosecution, under Rev. Code, § 942, for embezzlement by an agent, held, on the evidence, that it was for the jury to say whether the prosecuting witness, after his demand for and the agent’s refusal of the property in another state, was willing, and impliedly consented, that the agent should retain possession in this state as agent.</p> <p>4. Embezzlement—Demand and Refusal—Offense.</p> <p>In such prosecution, and upon a finding that the prosecuting witness was willing, and impliedly consented, that the agent should retain possession of securities as agent in a county of this state there might be a conversion in such county.</p> <p>5. Embezzlement—Agent—Elements of Offense—Statute.</p> <p>To convict, under Rev. Code, § 942, for embezzlement by agent, the jury must find that the defendant was at the time of the alleged embezzlement an agent, or acting in that capacity, and that he converted the property, or some part of it.</p> <p>6. Embezzlement—Agent—Possession or Custody—Conversion.</p> <p>In such prosecution, a conversion 'would be shown if the agent, after acquiring possession of the property, had sold or disposed of it, or attempted to do so, without the owner’s consent, or if he refused to deliver it to the owner on request, an