The Strange Schemes of Randolph Mason

by Melville Davisson Post

"Surely," interrupted Haines, beginning to appreciate the gravity of the situation, "old Allen can be sent to the penitentiary for this crime. He is a rank, out and out embezzler. He stole this money and converted it to his own use. Are you going to say that the crime of embezzlement is a dead letter?"

"My friend," said the judge, "you forget that there is no equity in the criminal courts. The crime of embezzlement is a pure creature of the statute. Under the old common law there was no such crime. Consequently society had no protection from wrongs of this nature, until this evil grew to such proportions that the law-making power began by statute to define this crime and provide for its punishment. The ancient English statutes were many and varied, and, following in some degree thereafter, each of the United States has its own particular statute, describing this crime as being composed of certain fixed technical elements. This indictment against Moseby Allen is brought under Section 19 of Chapter 145 of the Code of West Virginia, which provides: 'If any officer, agent, clerk or servant of this State, or of any county, district, school district or municipal corporation thereof, or of any incorporated bank or other corporation, or any officer of public trust in this State, or any agent, clerk or servant of such officer of public trust, or any agent, clerk or servant of any firm or person, or company or association of persons not incorporated, embezzle or fraudulently convert to his own use, bullion, money, bank notes or other security for money, or any effects or property of another person which shall have come to his possession, or been placed under his care or management, by virtue of his office, place or employment, he shall be guilty of larceny thereof.'

"This is the statute describing the offence sought to be charged. All such statutes must be strictly construed. Applying these requisites of the crime to the case before us, we find that Allen cannot be convicted, for the reason that at the time this money was placed in his hands he was not sheriff of Gullmore county, nor was he in any sense its agent, clerk, or servant. And, second, if he could be said to continue an agent, clerk, or servant of this county, after the expiration of his term, he would continue such agent, clerk, or servant for the purpose only of administering those matters which might be said to lawfully pertain to the unfinished business of his office. This fund was in no wise connected with such unfinished affairs, and by no possible construction could he be said to be an agent, clerk, or servant of this county for the purpose of its distribution or custody. Again, in order to constitute such embezzlement, the money must have come into his possession by virtue of his office. This could not be, for the reason that he held no office. His time, had expired; Jacob Wade was sheriff, and the moment Jacob Wade was installed, Allen's official capacity determined, and he became a private citizen, with only the rights and liabilities of such a citizen.

"Nor is he guilty of larceny, for the very evident reason that the proper custodian, Wade, voluntarily placed this money in his hands, and he received it under a bona fide color of right."

The Honorable Ephraim Haines arose, and brought his ponderous fist down violently on the table. "By the Eternal!" he said, "this is the cutest trick that has been played in the two Virginias for a century. Moseby Allen has slipped out of the clutches of the law like an eel."

"Ephraim," said the circuit judge, reproachfully, "this is no frivolous matter. Moseby Allen has wrought a great wrong, by which many innocent men will suffer vast injury, perhaps ruin. Such malicious cunning is dangerous to society. Justice cannot reach all wrongs; its hands are tied by the restrictions of the law. Why, under this very statute, one who was de facto an officer of the county or State, by inducing some other officer to place in his hands funds to which he was not legally entitled, could appropriate the funds so received with perfect impunity, and without committing any crime or rendering his bondsmen liable. Thus a clerk of the circuit court could use without criminal liability any money, properly belonging to the clerk of the county court, or sheriff, provided he could convince the clerk or sheriff that he was entitled to its custody; and so with any officer of the State or county, and this could be done with perfect ease where the officers were well known to each other and strict business methods were not observed. Hence all the great wrong and injury of embezzlement can be committed, and all the gain and profit of it be secured, without violating the statute or rendering the officer liable to criminal prosecution. It would seem that the rogue must be stupid indeed who could not evade the crime of embezzlement."

The man stopped, removed his spectacles, and closed them up in their case. He was a painstaking, honest servant of the commonwealth, and, like many others of the uncomplaining strong, performed his own duties and those of his careless companion without murmur or comment or hope of reward.

The Honorable Ephraim Haines arose and drew himself up pompously. "I am glad," he said, "that we agree on this matter. I shall sustain this motion."

The circuit judge smiled grimly. "Yes," he said, "it is not reason or justice, but it is the law."

At twelve the following night Colonel Moseby Allen, ex-sheriff of the county of Gullmore, now acquitted of crime by the commonwealth, hurried across the border for the purpose of avoiding certain lawless demonstrations on the part of his countrymen,—and of all his acts of public service, this was the greatest.