SMITH v. UNITED STATES, 261 F. 605

HUNT, Circuit Judge. Defendant asks review of a judgment of conviction in Alaska under an indictment which charged that he had embezzled $253.25 — - “the said money and the whole thereof being then and there the property of other persons, to wit, the Nenana Lodge, No. 1193, Loyal Order of Moose, the said Nenana Lodge, No. 1193, Loyal Order of Moose, being then and there a fraternal organization, and the said William H.

Smith being then and there an agent, servant, and employs of the said Nenana Lodge, No. 1193, Loyal Order of Moose, to wit, its secretary, and the said sum of $253.25 and the whole thereof having come into his possession as such officer, employe, and servant of said lodge,” etc.

The statute (section 1926, Criminal Code, Compiled Laws of Alaska 1913) provides: That if any officer, agent, clerk, employe, or servant “of any private person or persons, copartnership, or incorporation” shall embezzle or fraudulently convert to his own use, or shall take or secrete with intent to 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, employé, or servant shall be deemed guilty of embezzlement.” The contention of the plaintiff in error is that “fraternal organization” is not included in the language of

section 1926, and that a fraternal organization is not a private person or persons, within the meaning of the statute, and that therefore the indictment was wholly insufficient. But in our opinion the allegation that the money was then and there the property of “other persons,” to wit, the Nenana Bodge, “being then and there a fraternal organization,” was a sufficient averment that the money belonged to the lodge, an association of private persons, clearly included within the statute.

The argument that the indictment failed to aver that the Nenana Bodge was an incorporation or a copartnership is not relevant, because it does not follow at all that a fraternal organization must be either a corporation or a copartnership. Of common knowledge is it that persons often associate themselves together in fraternal organizations without resorting to forms of statutory organization. Such associations are, however, none the less fraternal organizations, composed of private persons, and employ servants and agents to whom moneys are intrusted. We believe the indictment stated an offense. Spurlock v.

State, 45 Tex. Cr. R. 282, 77 S W. 447; Hughes v. State, 109 Ark. 403, 160 S. W. 209; Griggs v. U. S., 158 Fed. 572, 85 C. C. A. 596. There being no bill of exceptions in the record, the errors^ assigned on the giving of two instructions are not presented for consideration. Dillard v. U. S., 141 Fed. 303, 72 C. C. A. 451; Buessel v. U. S., 258 Fed. 811,- C. C. A. -. We find no error, and affirm the judgment. Affirmed.