Bartley v. State

• Decision Date: 03 January 1898
• Citation: 53 Neb. 310,73 N.W. 744
• Parties: BARTLEY v. STATE.
• Court: Nebraska Supreme Court

53 Neb. 310

73 N.W. 744

BARTLEY

v.STATE.

Supreme Court of Nebraska.

Jan. 3, 1898.

Syllabus by the Court.

1. On motion to quash an information, the district court will not inquire into the validity of the warrant of arrest issued by the examining magistrate.

2. In a prosecution for the crime of embezzlement, the pendency against the accused of a former information in the district court of another county, charging him with embezzlement

of the same property within that county, is no ground for abatement.

3. Error cannot be predicated upon the overruling of a demurrer to a count in the information, where a nolle prosequi is subsequently entered to such count.

4. An information, in the caption and venue of which a given county and state are named, which charges that the defendant, “in the county aforesaid, then and there being in said county,” did commit a given crime, sufficiently alleges that the offense was committed in the county sated in the caption and venue.

5. The place of the commission of an offense charged in one of the counts of the information is sufficiently set forth by averment that the defendant, “in the county aforesaid,” did commit the acts constituting the offense, when by a former count the county and state are definitely stated.

6. An election by the prosecutor to proceed alone under one count does not so far take the other counts out of the information as to destroy the effect of a reference to them as to time and place.

7. A county attorney of the proper county may institute a criminal proceeding against a state treasurer for the embezzlement of the moneys of the state, notwithstanding such prosecutor had received no directions from the auditor of public accounts to take such step.

8. An information for embezzlement is sufficient if it sets forth the crime in the language of the statute creating it, without averring the particular acts in which the offense consisted.

9. An indictment against a state treasurer, which charges the embezzlement to his own use of a certain sum of money belonging to the state, is sufficient without an allegation that a demand for the money was made upon him by his successor in office.

10. Where different felonies of the same general character or grade are charged in different counts of an information, it is within the discretion of the trial court to require the prosecutor to elect as to counts. Korth v. State, 65 N. W. 792, 46 Neb. 631.

11. No election is required between counts charging the same offense.

12. Error cannot be predicated upon the overruling of a challenge to a juror for cause, where the record fails to disclose that the complaining party exhausted his peremptory challenges.

13. The evidence in the case is sufficient to sustain a conviction of the embezzlement of the moneys of the state.

14. Warrants drawn by the auditor of public accounts upon the state treasurer are not negotiable instruments.

15. The giving of credit as a deposit for the amount of a check, by the bank upon which it is drawn, is, in contemplation of law, a payment of the check in money, to the same extent as though the currency had been paid over the counter on the check, and immediately redeposited by the payee.

16. A state treasurer, who for an unauthorized purpose draws a check on a state depository bank having money of the state therein, which he delivers to the payee with intent to defraud the state, and the bank, on presentation of the check, places the amount thereof to the credit of a third party, whom the payee represents in the transaction, and at the same time charges the account of the state with a like sum, is guilty of the embezzlement of the money of the state, within the meaning of section 124 of the Criminal Code.

17. Where a state treasurer employed a bank to negotiate the sale of a warrant, which was the property of the state, the correspondence of such bank necessary to effect such sale is admissible in evidence in a prosecution of the treasurer for embezzlement of the amount subsequently used to take up such warrant, where there exists such a relation between the sale and the payment of the warrant that the motive in the latter transaction is illustrated by the facts incident to the former.

18. In a prosecution for embezzlement, one who has filled out his entire term of office cannot be heard to urge as a defense that when the embezzlement took place he was not an officer de jure; it is immaterial, in such case, whether he was an officer de jure or de facto.

19. In a prosecution for embezzlement or other crime, where the books, records, papers, and entries are voluminous, and of such a character as to render it difficult for the jury to arrive at a correct conclusion as to amounts, an expert accountant may be allowed to examine such books, etc., and testify as to the result of his examination, when such books, etc., are in the court room, subject to inspection by the accused.

20. Instructions must be construed together, and, if then they correctly announce the rule applicable to the issues and evidence, they will be upheld, even though a single paragraph, standing alone, might be faulty.

21. Held, that the instruction defining a reasonable doubt did not deny to the accused the benefit of a reasonable doubt arising from the lack of evidence in the case, and that it was not error to state in such instruction: “You are not at liberty to disbelieve as jurors if, from all the evidence, you believe as men. Your oath imposes on you no obligation to doubt, where no doubt would exist if no oath had been administered.”

22. The court charged the jury that “the law raises no presumption against the defendant. On the contrary, the presumption of law is in favor of his innocence. This presumption of innocence continues through the trial, until every material allegation in the information is established by the evidence, to the exclusion of all reasonable doubt.” Held equivalent to the rule that the presumption of innocence is a matter of evidence, to the benefit of which the accused is entitled.

23. In case of conviction under an information charging the embezzlement of money, a verdict finding the amount of money embezzled to be a specified number of dollars is a sufficient finding of value.

Error to district court, Douglas county; Baker, Judge.

Joseph S. Bartley was convicted of embezzlement of moneys belonging to the state, while he was the treasurer thereof, and brings error from the judgment and sentence. Affirmed.

T. J. Mahoney and Chas. O. Whedon, for plaintiff in error.

C. J. Smyth, Atty. Gen., and Ed. P. Smith, Dep. Atty. Gen., for the State.

NORVAL, J.

The defendant, Joseph S. Bartley, was convicted in the district court of Douglas county of embezzlement of moneys belonging to the state while he was the treasurer thereof. Besides a fine in double the amount found by the jury to have been embezzled, a term of 20 years in the penitentiary was the punishment assessed, and to obtain a reversal of said judgment and sentence is the purpose of these proceedings.

The information filed in the court below by the county attorney was in eight counts, the first and second of which charged the embezzlement of a certain warrant drawn by the auditor of public accounts upon the state treasury for the sum of $180,101.75. The remaining six counts set forth, in different forms, the embezzlement on the 2d day of January, 1897, of $201,884.05 of the moneys belonging to the state, which defendant received by virtue of his said office of state treasurer. At the close of the testimony for the state the county attorney entered a nolle prosequi as to the first two counts of the information, and upon the trial the accused was found guilty under the third count, but was acquitted as to all the other counts upon which the prosecution elected to rely for a conviction.

At this time it is not deemed essential to mention the various pleas, motions, and demurrers filed preceding the selection of the jury, or to give a history of the trial, or any statement of the facts revealed by the record. Such matters will be stated as we proceed with the investigation of the grounds urged for a reversal, at least so far as the same may seem necessary to an understanding of the propositions argued.

The first contention made in the brief of counsel for the accused is that the information under which the conviction was obtained should have been quashed because of the alleged invalidity of the warrant on which the arrest was made. The original complaint was filed with the police judge of the city of Omaha, and the warrant in question was issued thereon, which recited that a complaint had been made under oath before said judge charging that “Joseph S. Bartley, on or about the 25th day of April, A. D. 1895, within said county, and within the city of Omaha, did commit the offense of embezzlement.” The argument is that the warrant of arrest does not recite the substance of the accusation against the prisoner, as required by section 288 of the Criminal Code, and therefore is void. The warrant was not assailed before the magistrate, but the defendant waived a preliminary examination, and entered into a recognizance for his appearance in the district court to answer the charges preferred against him in the complaint. Objection to the sufficiency of the warrant was made for the first time in the trial court after the filing of the information therein by the county attorney. The question with which we have to deal is not whether the warrant should have been quashed on a proper objection before the magistrate, but whether the defects in the warrant have been waived by the failure to seasonably take advantage of the same. There is no room for doubt that, if the warrant was bad, the defect was not available to the defendant after he waived his preliminary examination, and had entered into a recognizance for his appearance in the district court. He was not thereafter held by the writ, as that instrument...