Davis v. State

• Decision Date: 19 July 1929
• Docket Number: 26815
• Citation: 226 N.W. 449,118 Neb. 828
• Parties: LEN J. DAVIS, v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

226 N.W. 449

118 Neb. 828

LEN J. DAVIS, v. STATE OF NEBRASKA

No. 26815

Supreme Court of Nebraska

July 19, 1929

ERROR to the district court for Fillmore county: ROBERT M PROUDFIT, JUDGE. Reversed.

REVERSED.

Syllabus by the Court.

In a prosecution for embezzlement of notes or credits, the state must charge in the information the particular property embezzled with sufficient certainty as to apprise the defendant of the facts upon which it relies for conviction.

In a prosecution for embezzlement, the criminal intent is a necessary element of the crime, which must be established as any other fact on the part of the state beyond a reasonable doubt, and a refusal of the trial court to permit the defendant to offer evidence from which the jury might draw the conclusion that the element of criminal intent is absent constitutes reversible error.

Additional Syllabus by Editorial Staff.

" Credits" include choses in action, or any other obligation due or to become due under which the relationship of debtor and creditor may arise.

Error to District Court, Fillmore County; Proudfit, Judge.

Len J. Davis was convicted of embezzlement, and he brings error. Reversed.

George F. Corcoran and Waring & Waring, for plaintiff in error.

C. A. Sorensen, Attorney General, Clifford L. Rein and Guy A. Hamilton, contra.

Heard before GOSS, C. J., DEAN, GOOD, EBERLY, and DAY, JJ., and CHASE and REDICK, District Judges.

OPINION

CHASE, District Judge.

In this case Len J. Davis was convicted of the crime of embezzlement. He prosecutes error to this court for reversal of the conviction. For all purposes herein Len J. Davis will be referred to as the defendant.

The defendant relies upon twelve separate assignments of error for a reversal of the conviction. After careful examination of the record, we are convinced that his conviction cannot be affirmed, therefore, we will not discuss all the assignments of error upon which a reversal is sought.

There does not seem to be any serious dispute upon the facts. Len J. Davis for a number of years previous to the trial had been vice-president of the Citizens State Bank of Geneva, Nebraska, and was such on the 8th day of July, 1927, being the date on which he is charged with the commission of the crime. A short time prior to July 8, 1927, Roy and Joe Davis, brothers of defendant, appear to have been indebted to the Citizens State Bank of Geneva in the amount of approximately $ 7,900. The bank, about this time, was in serious financial difficulties. The defendant had a meeting with the directors of the bank in which the Davis brothers' loan was discussed. At this meeting the directors, along with the defendant, decided that it was necessary for the preservation of the bank to take this paper out of the bank. The defendant, on and previous to this time, was also trustee of the estate of one John Archer, deceased. This estate had among its assets a note signed by one Koehler in the sum of $ 7,500 secured by a first mortgage on real estate. At this directors' meeting the defendant offered, and the directors consented, to assign the Koehler note, belonging to the Archer estate, to the bank as an asset, and the bank to assign the Davis brothers' notes to the Archer estate. This was done for the purpose of building up the reserve of the bank. Whereupon the defendant made the assignment in accordance with this arrangement. The Koehler note was then sold by the bank, and for aught this record discloses the proceeds of the sale went into the assets of the bank. It is not clear just how much money was realized from the sale of the Koehler note. It also appears from the offer made by the defendant that it was agreed between him and the directors that at any later time, or when the bank reestablished its financial equilibrium, the defendant would have authority to take the Davis brothers' notes from the Archer estate and put into the Archer estate notes or money equivalent in value to the Koehler note which had been sold to the bank. The bank continued to grow financially weaker, and when it was evident that it would have to close its doors the defendant, claiming to have done so under the previous arrangement with the board of directors, assigned 41 notes, assets of the bank, to the Archer estate in lieu of the Koehler note. At this time he put back into the bank the indebtedness of Davis brothers which was being carried as an asset of the Archer estate. The Davis brothers' paper is admitted to have been practically valueless at the time it was transferred to the Archer estate, and was still valueless at the time it was taken back into the bank when the 41 notes were assigned to the Archer estate. The assignment of these 41 notes to the Archer estate is the act of embezzlement upon which the state relies to support its conviction.

The information in which the defendant was charged with the crime of embezzlement at first contained two counts, but upon motion duly made by defendant, and sustained by the court, the state was required to elect upon which count it should stand, and it therefore elected to stand upon the first count of the information. The information, so far as material to our consideration, after alleging the relationship of the defendant to the Citizens State Bank of Geneva, is in the following words:

"That on or about the said 8th day of July, 1927, the said Len J. Davis, in said county and state aforesaid, did fraudulently, unlawfully and feloniously abstract, convert to his own use, and embezzle certain moneys, funds and credits, the property of said bank, in the sum of $ 8,101.46, said property being in his possession as such vice-president of said bank, without authority of the directors of said bank, and with the intent on the part of the said Len J. Davis to injure and defraud said Citizens State Bank of Geneva, Nebraska."

One of the chief assignments of error upon which the defendant relies for reversal of the conviction is that in substance the information charges the defendant with the embezzlement of the sum of $ 8,101.46 in money; that the state made no effort to establish this charge, but undertook to prove, and did prove to the satisfaction of the jury, that the defendant did not embezzle any money, but abstracted from the bank 41 separate promissory notes and converted the same to his own use. The defendant contends that the state, if it relied upon such evidence for a conviction, under the law, would be required to charge in the information that the defendant abstracted certain promissory notes from the bank and set forth said notes in detail in order that the defendant may have notice of the charge which he is required to meet.

This court construed section 9638, Comp. St. 1922, in Winkelmann v. State, 114 Neb. 1, 205 N.W. 565, in which it held that, where it was charged that a person did wilfully and feloniously embezzle, abstract and misapply the sum of $ 1,000, being money, funds and credits, the charge referred to a single transaction. "Where, under section 9638, Comp. St. 1922, a bank cashier is charged in one count of an information with embezzling, abstracting and misapplying $ 1,000 of the bank's funds, and all the acts charged relate to a single transaction, only one offense is charged." Winkelmann v. State, 114 Neb. 1, 205 N.W. 565. The question of any variance between the charge and the proof was not present in that case. Here the precise question is not whether the information charges a single crime, but whether the state must specifically set forth the...