
    *Shinn v. The Commonwealth.
    March Term, 1879,
    Richmond.
    1. Grand Jury. — Although one of the forty-eight persons directed by the judge to be summoned to serve as grand jurors for the ensuing twelve months, may be incompetent to serve as a grand juror, a grand jury of sixteen selected from this list, all of whom are competent, is a legal and duly qualified grand jury.
    2. Special Grand Jury. — Where one of the grand jury finding an indictment was incompetent, and for that reason the grand jury is dismissed and the indictment quashed, the court may direct a special grand jury of eight to be summoned and impaneled at the same term; and an indictment found by this grand jury is valid.
    3. Larceny — -Corporate Records as Evidence ag'ainsi Officer. — -Upon an indictment against S, the secretary of a building fund association, for the larceny of a check, the property of said association, the records of the association whilst he was in office, and oral evidence relating to the organization, objects and business of the building association, the appointment and duties of S as secretary, his conduct with respect to the funds of the association in his hands, and his disposition and appropriation of the check, for the larceny of which he was indicted, are competent evidence against him.
    4. Same — Indictment against Corporate Officer-Corporate Existence — Collateral Attack. — In such a case whether the building fund association was organized strictly in conformity with the requirements of the statute, is not a proper subject of enquiry, S having, as secretary of the association, received and wilfully appropriated its funds or property, cannot be heard, upon a criminal prosecution therefor to contradict its legal existence.
    5. Same — Embezzlement—Criminal Intent —Question for Jury. — The check having been given to S, the secretary, in payment of a debt due to the association, was the property of the association, and though payable to S, as secretary, it was also payable to bearer, and it was the duty of S to turn it over to the treasurer. If S had accounted for the money, that fact would, of * course, show that he had no intention to appropriate the check. Not having done so, it was a question for the jury, whether he intended to embezzle the check. And to convict him, it was necessary that the jury should be satisfied that this intention existed before, or at the time the check passed into the possession of the bank.
    6. Same — Same Controlling Statute. — Though the building association was organized under the act of 1852, even if that act applied to a prosecution for« the embezzlement of a check by an officer of the association, the act of February 24th, 1874, p. 81, § 11, being subsequent in date, must control the case.
    7. Same —- Same — Criminal Intent. — If S drew the money on the Avery check with the intention of using the same for his own purposes, and not for the liquidation of the Avery debt, though probably with the intention to return the same at some future day, to the building association, he is guilty of the embezzlement of the check.
    8. Competency of Jurors. — Where there is ground to believe that jurors named had not formed such decided opinions as disqualified them from giving the prisoner a fair trial, the verdict will not be set aside on the ground that they were incompetent jurors.
    At the December term, 1878, of the corporation court of Alexandria, a grand jury of eight members indicted George R. Shinn for the larceny of a check which was in the following words and figures:
    Alexandria, Va., August 18th, 1874. The Citizens Bank of Alexandria:
    Pay to Geo. R. Shinn, sec’y, or bearer, six hundred and fifty-three dollars 50-100.
    Wesley Avery.
    $653.50.
    The indictment contained two counts — the first stating that the check was the property of the Alexandria Co-operative Building Association of Alexandria, Va., and the second that it was the property of Wesley Avery.
    The defendant filed two special pleas; to which the attorney for the commonwealth demurred; and the court sustained the demurrer.
    *The first special plea stated that of the list of forty-eight persons directed by the judge to be summoned to be grand jurors for twelve months thereafter, one of them — Herbert Bryant — had been adjudged by the court to be the owner of a mill and disqualified to act as a grand juror; and that the grand jury which found the indictment in this case was summoned from said list, and not summoned to fill vacancies in a grand jury; and so the said list so furnished as aforesaid was not a list of for-ty-eight persons suitable in all respects to serve as grand jurors, as required by law.
    The second special plea, after setting out the fact that Herbert Bryant, one of the grand jury of sixteen impaneled and sworn at said December term of the court, had been adjudged by the court incompetent, and the grand jury discharged, states that the court directed the clerk to issue a venire facias for a special grand jury of eight, returnable the next day; that said special grand jury were summoned from the said list furnished as aforesaid; that said eight persons so impaneled and sworn, the said Herbert Bryant not being one, presented the paper purporting to be an indictment, which is the paper upon which the defendant is about to be tried. And he says that the said December term, 1878, was a regular grand jury term, at which there should have been a regular grand jurjr of not less than sixteen qualified jurors; that the sixteen persons sworn as aforesaid did not constitute a regular' grand jury at the December term, 1878, and the summoning the said special grand jury at said December term, 1878, was illegal, and that the paper presented by said special grand jury at said term, purporting to be an indictment against the defendant, and on which he now stands charged, is of no effect, null and void.
    The defendant then moved the court to quash the indictment, but the court overruled the motion. He then demurred to the indictment and each count thereof; which being overruled, he pleaded not guilty.
    *On the trial the jury found the
    prisoner guilty on the first count in the indictment, and fixed the term of his confinement in the penitentiary at three years.
    In the course of the proceedings the prisoner took seven bills of exceptions to rulings of the court, which will be best understood by a brief statement of facts.
    The Alexandria Co-operative Building Association of Alexandria. Va., was incorporated in' 1870, and was organized on the 8th of September of that year; though it was one of the questions made in the cause whether its organization had been regular. Of this association Edward S. Eeadbetter was president, the prisoner was the secretary, and continued as such until the 10th of October, 1876. A. H. Smyth was treasurer until after September, 1875, when he resigned, and J. H. Reid was elected his successor. The meetings of the' association were held on the 1st and 3d Tuesday evenings of each month, and at these meetings the stockholders paid the subscription on their stock and the borrowers paid the premiums on their loans. The secretary was on the left and the treasurer on the right of the president at said meetings, and the stockholder would hand the book with the money owed by him to the president, who would generally count it and say it was correct; then the secretary would receipt it Jn the pass book of said stockholder and enter it on the secretary’s book to the credit of the stockholder, and the president would credit to said stockholder the amount so paid on the check sheet, and the money would be handed to the treasurer.
    The secretary kept the books of the association, and frequently, during the intervals between the meetings, he received money of stockholders, and settled the loans and received payments of such loans, and, as a rule, the money or checks were reported and accounted for by him at the next succeeding meeting, and entered on his secretary’s book to the credit of such stockholders or borrowers. The president would also credit it on the check sheet as of that *meeting, and the same was receipted for by the treasurer to the secretary. Borrowers were permitted to settle their loans with the secretary at any time, and he was the only person to settle with them; and the secretary received payments thereof in currency or checks as money, and turned over to the treasurer what he so received.
    In August, 1874, Wesley Avery was a member of the association, and was indebted to it for money borrowed. On the 18th of August, 1874, he called upon the prisoner at his place of business, in the city of Alexandria, to settle with him, as secretary of the said association, his indebtedness to it. The prisoner informed him that the amount of his said indebtedness was $653.50, and drew up a check, payable to himself as George R. Shinn, secretary, or bearer, for that amount, and handed it to Avery, who signed it and returned it to Shinn, not giving to Shinn any directions as to the use of it, but intending it as a payment of his indebtedness to the association. This check was paid by the bank to Shinn, but was not returned or accounted for at the meetings of the association, nor was it known to the association that Avery had paid his debt until after Shinn left Alexandria in October, 1876, when, on application to Avery for payment, he produced the check; and upon examination of the books of the association and application to the persons who appeared to be debtors, there appeared to be other instances in which Shinn had received payments of debts without accounting for the money. For other facts bearing on the different exceptions, see the opinion of the court, delivered by Staples, J.
    It appears that eight indictments had been found against Shinn — one for forgery, and the other for embezzlement and larceny —of which the present is numbered 7. On three of these indictments he had been tried and acquitted by the jury; and on two others — one of which seems to have been an indictment for the embezzlement and larceny of the same check of Avery — the jury could not agree upon a vérdict, and was discharged.
    *The first bill of exceptions relates to the refusal of the court to send to another county or corporation for a jury, on the ground that an impartial jury could not be obtained in the city of Alexandria. The second relates to the refusal of the court to exclude from the jury as evidence the articles of association of the Alexandria Co-operative Building Association of Alexandria, Va. The third was to the admission as evidence of the annual statement of the secretary in the prisoner’s handwriting, rendered to the first meeting in September, 1874. It had been proved that the constitution of the association required the secretary and treasurer to make quarterly reports on the first meeting in December, March and June of each fiscal year, and a statement annually on the first meeting in September, the end of each fiscal year; which annual statement of the secretary was required to show the standing of each member, or stock and loan account, and the condition of the association, its assets and liabilities.
    The fourth bill of exceptions was to the refusal of the court to exclude from the jury all the evidence offered on behalf of the commonwealth and set out in this and the second and third bills of exceptions.
    After all the evidence, both for the commonwealth and the prisoner, had been introduced. and the case had been argued, the prisoner moved the court to give to the jury nine instructions. Of these the court gave the 4th, 5th, and Oth and 7th. but refused to give the rest, and of its own motion gave tbe following:
    1st. If the jury believed from the evidence, beyond reasonable doubt, that the Alexandria Co-operative Building Association was a body corporate duly incorporated by the laws of this commonwealth; that the check described in the said indictment was delivered to the prisoner by Wesley Avery, the said check (or proceeds thereof) to be paid over to the said association in payment of ah indebtedness from the said Avery to the
    said association; that the prisoner ^received the said check for the said association; that the said check was
    the property of the said association; that the prisoner presented the said check to the bank upon which it was drawn, and obtained the money therefor; that he has not paid the said money to the said association in payment of said indebtedness, bul has used the same for his own purpose, without the permission or authority of the said association; then if the jury shall further believe that the prisoner, whilst the check was in his possession, and before it had passed from his possession to the possession of the bank, conceived the purpose of obtaining the money on said check, not for the payment of the said indebtedness, but using the same for his own purpose, without obtaining the permission or authority of the said association — then the jury may find the prisoner guilty under the first count.
    2d. If the jury believe from the evidence, beyond reasonable doubt, that the check described in the indictment was delivered to the prisoner by Wesley Avery, the check itself (or the proceeds thereof) to be paid bv the prisoner to the Alexandria Co-operative Building Association in payment of an indebtedness of the said Avery io the said association; that the said association was a body corporate, duly incorporated under the laws of this commonwealth; that the prisoner presented the said check to the bank uoon which it was drawn, and obtained the money therefor, and had not paid the said money either to the said association in payment of the said indebtedness, or to the said Avery, but had used the same for his own purposes, without the permission or authority of the said Avery; that said check was the property of the said Avery; then if the jury shall further believe from the evidence. beyond reasonable doubt, that the prisoner, whilst the check was in his possession, and before it had passed to the possession of the bank, conceived the purpose of obtaining the money on said check, and using the same, not for the payment of the said indebtedness or of paying the same to the said Avery, but to use the same for his own purposes, without obtaining the permission or authority of the said Avery — the jury may find the prisoner guilty under the second count.
    3d. To justify the jury in finding the prisoner guilty under the first count, they must believe from the evidence, beyond reas >n-able doubt, all the facts as stated in the first instruction. To find the prisoner guilty under the second count, they must believe all the facts as stated in the second instruction. If they do not believe all the facts as staled in one or the other of said instructions, beyond reasonable doubt, they will find the prisoner not guilty.
    To the refusal of the court to give said instructions as asked, and to the action of the court in giving the 1st, 2d and 3d instructions, the defendant excepted, and prays that this his fifth bill of exceptions may be signed, sealed and enrolled; which is accordingly done.
    The sixth exception is to the answer of the court to an enquiry of the jury. And the seventh is to the refusal of the court to set aside the verdict and grant the prisoner a new trial; which was asked on the grounds that the verdict was contrary to the evidence, and law, and other grounds; and among them, that three of the jurors named were not competent jurors on account of prejudice and bias against the accused.
    The court having sentenced the prisoner in accordance with the verdict, he applied to this court for a writ of error; which was awarded.
    Chas. E. Stuart, for the prisoner.
    Attorney-General and Samuel G. Brent, for the commonwealth.
    
      
       Corporate Existence — Collateral Attack.- — The existence of a corporation de facto cannot be inquired into collaterally, but must be attacked directly by a proceeding instituted in the name of the state. Pixley v. Roanoke, etc., Co., 75 Va. 320; Crump v. United Stales Mining Co., 7 Gratt. 352. See also extensive note, 11 Am. & Eng. Corp. Cas., N. S., 398 ei seq.; 8 Am. & Eng. Enc. of Law (2nd Ed.), 754 et seq.
      
      Larceny and Embezzlement. — The principal case is cited in support of the proposition that proof of embezzlement will support an indictment for larceny in Pitsnogle’s Case, 91 Va. 811. See also Dowdy’s Case, 9 Gratt. 727; Leftwich’s Case, 20 Gratt. 716; Price’s Case, 21 Gratt. 846; Fay’s Case, 28 Gratt. 912; Dull’s Case, 25 Gratt. 965.
    
    
      
       Competency of Jurors. — In the following cases it was held that the opinions formed by jurors were not such decided opinions as to disqualify them from serving; Clore’s Case, 8 Gratt. 606; McCune v. Comm., 2 Rob. 771; Heath v. Comm., 1 Rob. 735; Williams v. Comm., 85 Va. 607; Hendrick v. Comm., 5 Leigh, 707; Hall v. Comm., 89 Va. 171; Maile v. Comm., 9 Leigh, 661; Page v. Comm., 27 Gratt. 954; Little v. Comm., 25 Gratt. 921; Brown v. Comm., 2 Leigh, 769; Smith v. Comm., 6 Gratt. 696, 697; Sprouce v. Comm., 2 Va. Cas. 375. For cases holding jurors disqualified because of opinions formed by them, see Lithgow v. Comm., 2 Va. Cas. 297; Armistead v. Comm., 11 Leigh, 657; Dejarnette v. Comm., 75 Va. 867; Washington v. Comm., 86 Va. 405.
    
   STAPLES, J.,

delivered the opinion of the court.

*The court is of opinion that the defendant’s first plea in abatement docs not present any proper matter of defence to the indictment. The design of the statute in requiring the judges of the several county and corporation courts to select from ihe qualified voters forty-eight persons, who shall be grand jurors for the next twelve months thereafter, was merely to secure a sufficient number of qualified grand jurors, during that period. When a qualified grand jury is obtained from those thus selected it is no valid objection to it, that others on the list of forty-eight may perchance be disqualified. The proposition asserted in the plea is, that any one of the forty-eight is incompetent to serve, that of itself will vitiate an indictment found by a grand jury, each one of which possesses every necessary qualification. To state the proposition is to give the refutation. See acts 1877-8, p. 330.

With respect to the matter of the second plea in abatement it is sufficient to say that the first grand jury impaneled at the December term. 1878, was a regular grand jury within the -true intent and meaning of the statute, although one of the persons serving thereon may have been disqualified, and for that cause the indictment pronounced defective. Upon the discharge of that grand jury it was competent for the court, if the public interests required it, to proceed at once to impanel a special grand jury, consisting of eight persons, as was done in the present case.

The court is therefore of opinion, the corporation court did not err in sustaining the demurrer to the two pleas in abatement.

The court is further of opinion the corporation court did not err in overruling defendant’s motion to summon a jury from another county or corporation. Whatever prejudice may have prevailed against the defendant, if such there was, growing out of the alleged commission of other offences involved in previous trials, none was shown *to exist in the present case. There was not the slightest reason for supposing the defendant could not obtain a fair trial by a jury of the vicinage. Indeed, the motion of the defendant was not made until after fourteen qualified jurors had been obtained, and the entire number was in a short time procured without the slightest difficulty.

The court is further of the opinion, the corporation court did not err in admitting the evidence, oral and documentary, set out in the defendant’s second, third and fourth bills of exception. That evidence related to the organization, objects and business of the “building association,” of which defendant was a member, his appointment and duties as secretary of the association, his conduct with respect to the funds of the association in his hands, and his disposition and appropriation of the check, for the larceny of which he was then on trial. Whether the association was organized strictly in conformity with the requirements of the statute was not a proper subject of enquiry. The defendant having, as secretary of the association, received and willfully appropriated its funds or property, could not be heard, upon a criminal prosecution against him therefor, to contradict its legal existence. This is not the case of a suit brought by the corporation to enforce its rights, when, if the fact of its legal existence is put in controversy upon the issue, the corporation may be called upon to establish its existence. Nor is it the case of a quo warranto, where the government calls upon the company to establish its legal corporate powers and organization. The' case here is of a public prosecution for a crime, where the corporation is no party, and is merely collaterally introduced as being intended to be prejudiced by the commission of the crime. United States v. Amedy. 11 Wheat. R. 392.

The court is further of opinion, that the corporation court having certified the evidence adduced on the trial, and not the facts proved, it is not the province of this *court to review the finding of the jury, unless it is manifest the testimony is plainly insufficient to warrant the verdict. The defendant is charged with the larceny and embezzlement of a check, the property of the association. It is insisted that he cannot be convicted of the offence, because the check was payable to him or his order. and it was his right as well as his duty to collect the money; and if the defendant was guilty of any offence, it was the larceny of the money, and not of the check. In the first place, the check was not the property of the defendant, but of the association. It was payable to him as secretary, and was received by him as such in payment of a debt due the association. It was also made payable to bearer, the object being not only to identify the check as trust property, but to enable any proper officer of the association to collect the money thereon. It was plainly the defendant’s duty not to collect, but to turn over the check to the treasurer. Had the defendant duly accounted for the money, that fact would of course establish the fact that he had no intention to appropriate the check. Not having done so, it was a question for the jury whether he intended to embezzle the check. The corporation court very properly instructed the jury they must be satisfied this intention existed before or at the time the check passed into possession of the bank. The jury were satisfied, from all the circumstances, that such was the fact, and we find nothing in the case to warrant this court in interfering with the verdict.

The act of 24th February, 1874, would seem directly to apply to the case. The first section provides “that if any person shall wrongfully and fraudulently use, dispose of, conceal, and embezzle, any money, bill, note, check, order, bond, draft, receipt, bill of lading, or any other property, which he shall have received for another, or for his employer, principal, or bailor, or by virtue of his office, trust, or employment, or which shall have been entrusted *or delivered to him by another, or by any court, corporation, or company, he shall be deemed guilty of the larceny thereof.” It has been argued that by the act of 1852, under which this association was organized, the offence with which the defendant is charged is a mere misdemeanor. The penalties prescribed by the act of 1852 relate to acts done without felonious .intent, and not to the crime of embezzlement or larceny. If this were not so, if the act of 1852 could be construed as applying to a prosecution like the present, still the act of 1874, already cited, being subsequent in date, must control the case. See Acts of 1874. p. 81, § 11.

The court, is further of opinion, that the corporation court did not err in refusing to give defendant’s second, third, fourth, fifth, seventh and ninth instructions.

The matter of all these instructions, except the last, has been disposed of in considering the evidence. If the defendant could be legally convicted of embezzling the check under the facts an'd circumstances already mentioned, these instructions -were properly refused by the court. With reference to the ninth instruction, it is only necessary to say that the mere fact the defendant became civilly liable to the association by appropriating its money, did not at all affect the question of his criminal responsibility if he acted with a felonious intent.

The court is further of opinion, that the corporation court committed no error in the answer it gave to the enquiry of the jury set out in the sixth bill of exceptions. The jury, after retiring to consult of their verdict, returned into court and propounded the following question: “The jury wish to know if the prisoner drew the money on the Avery check, with the intention of using the same for his own purposes, and not for the liquidation of the Avery indebtedness, but probably with the intention to return the same at some future day to the building association, can they find him not guilty?” To which the judge replied, “I answer the question in the negative.”

*Now, it is to be observed, the only matter as to which the jury desired information was whether, if the defendant took the money, the proceeds of the check, intending probably to return it at some future day, they would be justified, on that ground, in finding him not guilty. Very properly the court answered the question in the negative. The court might have gone on to explain the matter more fully to the jury, if it deemed any further explanation necessary; it had, however, already given a number of instructions applying to the case, in its various aspects, and it is obvious the jury only desired information upon the point to which their enquiry was addressed. The court, therefore, very properly contented itself with a direct and simple response to that enquiry.

The court is further of opinion, the corporation court did not err in overruling the defendant's motion for a new trial upon the ground that the verdict was contrary to the evidence. This has already been disposed of in effect in considering another branch of the case, and nothing further need be added on the subject. The motion for a new trial was, however, based upon the further ground that certain members of the jury, having made up and expressed decided opinions with respect to the guilt of the defendant, were not qualified to give him a fair trial.*

Upon that point, all that is necessary to be said is that the affidavits, statements, and examinations of the several jurors and witnesses showed that the remarks attributed to the objectionable jurors had been misunderstood by the hearers. At all events, there was good ground to believe that neither of them had formed such decided opinions as disqualified them from giving the defendant a fair trial.

For these reasons we are of opinion that there is no error in the judgment of the corporation court, and the said judgment must be affirmed.

Judgment affirmed.  