language of the indictment that the gasoline rationing coupons purported to have been embezzled by the defendant were not those gasoline rationing coupons which were entrusted to him. If the embezzled coupons were not those entrusted to the defendant, the defendant cannot be charged with the crime of embezzlement for, in such case, the element of lawful possession would be lacking.
The defendant is referred to in the indictment as a member of the "Roselle Park War Price and Rationing Board", but nowhere in the indictment is the relationship between this particular board and the United States averred. It would appear from the indictment that the trust relatioship giving rise to the embezzlement was between the Board and the defendant, but no mention is made of the existence of the Board as a legal entity or as a subdivision of an authorized agency of the United States, or otherwise.
The government in its argument submits that the Board was a part of the Office of Price Administration, the authority for which originated from the statutory authority vested in the President of the United States by the Emergency Price Control Act 1942, 50 U.S.C.A.Appendix § 901 et seq. and the Second War Powers Act of March 27, 1942, 50 U.S.C.A.Appendix § 631 et seq. By virtue of powers delegated to him, the State Director on May 15, 1942, it is stated, established the Union County War Price Rationing Board No. 3 to cover Roselle and Linden, New Jersey. It is further stated that this Board is otherwise known as the Roselle Park War Price and Rationing Board. No reason is given as to why the government should choose the "otherwise known" name rather than the true designation. The defendant is entitled to know exactly the trust relationship with which he was charged. In order to establish lawful possession, an essential element of this crime, the exact relationship between the defendant and the owner of the property, should be set forth.
In respect to the failure to aptly describe the governmental agency whose trust the defendant is alleged to have betrayed, and the additional failure to specify the gasoline rationing coupons alleged to have been embezzled as the same property entrusted to him, the indictment in the case at bar would expose the defendant to a second charge on the same subject matter.
It is for these reasons that the indictment is not sufficient in law to compel the defendant to answer thereto and the demurrer will be sustained.
There is no merit to the contentions of the defendant that the value of the property embezzled was not sufficiently alleged, and that the indictment is defective because it described the "gallonage" value of the coupons. The case cited by the defendant, Clark v. United States, 6 Cir., 268 F. 329, held that an undelivered government pay check may be the subject of larceny regardless of the smallness of its value. The court said:
"But, even under the common-law rule, conviction would be sustained if the paper itself had any intrinsic value, no matter how small that value might be. This question is fully discussed and authorities cited in the case of Jolly v. United States, 170 U.S. 402 at page 407, 18 S. Ct. , at page 626, 42 L. Ed. 1085. * * *
"The fact that time and labor had been expended upon this check by an officer of the United States, at the expense of the United States, in preparing it for the purposes for which it was intended, would certainly not make the check less valuable to the United States than a blank check, nor would the government be required to show that it was of the value of the amount written therein. If it was of any value whatever to the United States, then, in that respect, the verdict of guilty would be fully sustained by the evidence." 268 F. at page 331.
It is apparent that valid gasoline rationing coupons which are the property of the United States possess such value as to make them the subject of embezzlement and it is not necessary to give an estimate of their intrinsic value to the government in the indictment. The "gallonage" value of the gasoline rationing coupons stated in the indictment may be considered as surplusage. However, for the reasons heretofore stated the indictment fails.
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