172 P. 371 (Nev. 1918), 2291, State v. McFarlin

Docket Nº:2291.
Citation:172 P. 371, 41 Nev. 486
Opinion Judge:COLEMAN, J. McCARRAN, C.J.
Party Name:STATE v. McFARLIN.
Attorney:James M. Frame and Howard Browne, both of Reno, for appellant. Geo. B. Thatcher, Atty. Gen., and G. J. Kenny, Dist. Atty., of Fallon, for the State.
Case Date:April 30, 1918
Court:Supreme Court of Nevada
 
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Page 371

172 P. 371 (Nev. 1918)

41 Nev. 486

STATE

v.

McFARLIN.

No. 2291.

Supreme Court of Nevada

April 30, 1918

Appeal from District Court, Churchill County; T. C. Hart, Judge.

George B. McFarlin was convicted of embezzlement, and from the judgment, and denial of his motion for new trial, he appeals. Reversed, and new trial granted.

See, also, 167 P. 1011.

James M. Frame and Howard Browne, both of Reno, for appellant.

Geo. B. Thatcher, Atty. Gen., and G. J. Kenny, Dist. Atty., of Fallon, for the State.

COLEMAN, J.

Appellant was convicted in the district court upon the charge of embezzlement, and appeals from the judgment, and from the order denying a motion for a new trial.

It was urged in the trial court that the information does not charge an offense, and the same objection is presented for our consideration. It is said that the information is bad, because (1) there is no allegation that the defendant was authorized to receive the money; (2) there is no allegation that the defendant was intrusted with the money by virtue of his employment; and (3) there is no allegation that defendant was, by virtue of his employment, charged with the duty of receiving the money. To sustain these contentions our attention is called to Ex parte Ricord, 11 Nev. 287; Ricord v. C. P. R. R. Co., 15 Nev. 167; People v. Bailey, 23 Cal. 577; People v. Shearer, 143 Cal. 66, 76 P. 813.

Without undertaking to specifically point out wherein the cases mentioned are not in point, we think it sufficient to say that they were instituted under statutes unlike our present statute. Embezzlement is a statutory crime, and all that is necessary in charging the offense is to follow the statute. The statute under which the case was instituted is section 6653, Revised Laws, and that portion which is of importance in considering the objections urged reads as follows:

"Any agent, manager or clerk of any *** corporation *** with whom any money *** shall have been deposited or intrusted, who shall use or appropriate such money *** or any part thereof in any manner or for any other purpose than that for which the same was deposited or intrusted, shall be guilty of embezzlement. ***"

Omitting the formal parts of the information in question, it charges that the defendant-

"while then and there an employé of the county of Churchill, a political subdivision of the state of Nevada, to wit, the duly appointed and acting manager of the Churchill County Telephone & Telegraph System, which said system being then and there exclusively owned and operated by the said county of Churchill, state of Nevada, and then and there, by virtue of said employment, as manager aforesaid, there came into the possession and under the control of said defendant, for transmission to the county treasurer of the said county of Churchill, state of Nevada, the sum of $556.02, lawful money of the United States, of the personal property of the said county of Churchill, state of Nevada, said sum, $556.02, lawful money, being public money received by said defendant for the said county of Churchill, state of Nevada, during the month of March, A. D. 1916, while said public money and personal property were so in his possession and under his control by virtue of said employment as aforesaid, then and there, to wit, on the 31st day of March, A. D., 1916, or thereabout, said defendant did willfully, feloniously, and unlawfully use, embezzle, and convert said sum of public money and personal property, received by him as aforesaid, for his own private purposes and for a purpose other than one duly authorized by law."

It will be seen that the information charges that the defendant was manager of the telephone system; that as such manager there came into his possession and under his control certain money, the property of Churchill county; that it came into his hands for a specific purpose, viz. for transmission

Page 372

to the county treasurer; that while the money was in his possession for that purpose he feloniously and unlawfully converted it to his own use. These allegations seem to fully comply with the requirements of the statute. We think that the information is good.

It is also urged that the trial court erred in overruling an objection to certain pages in the books of account of the telephone system, offered in evidence by the state. This objection should have been sustained, and the failure to do so was prejudicial to the defendant. The defendant was not the bookkeeper, did not understand bookkeeping, was not familiar with the books, and his attention was never directed to the items on the pages introduced in evidence. It is a general rule that where an employé of a concern is on trial for embezzlement neither the books, nor portions of the books of the concern, which are not in the defendant's handwriting, are legal evidence against him, unless there be testimony tending to show that his attention was called to them and that he made some admission in regard to the portion offered in evidence. Lang v. State, 97 Ala. 46, 12 So. 183. In People v. Burnham, 119 A.D. 302, 104 N.Y.S. 725, which was a case similar to the one at bar, it was said:

"There was also evidence admitted, against the objection and exception of the defendant, in relation to the entry in the books of the corporation respecting this payment, which was incompetent as against the defendant. He was not shown to have had anything to do with these books, or any knowledge of their contents, or any connection with the entries. The books of a corporation are not evidence as against an officer of the corporation in a criminal prosecution against him."

In People v. Blackman, 127 Cal....

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