Edelhoff v. State

• Decision Date: 07 May 1894
• Citation: 36 P. 627,5 Wyo. 19
• Parties: EDELHOFF v. STATE
• Court: Wyoming Supreme Court

36 P. 627

5 Wyo. 19

EDELHOFF v. STATE

Supreme Court of Wyoming

May 7, 1894

Indictment returned October 17, 1893.

ERROR to District Court for Carbon County, HON. JESSE KNIGHT Judge.

This was a proceeding brought to obtain a review of the trial and proceedings resulting in the conviction of Emil Edelhoff of the crime of embezzlement. The facts are sufficiently stated in the opinion.

Judgment reversed and cause remanded.

H Donzelmann, for plaintiff in error.

The indictment is not certain. (L. 1890, p. 134, Sec. 53.) Articles of incorporation filed with the county clerk are not legal evidence of corporate existence. (R. S., p. 194.) An unnecessary description in a pleading must be proved as alleged. (1 Bish., Cr. Pro., Secs. 485, 488; Warrington v. State, 1 Tex.App. 173; John v. State, 24 Miss. 569.) Separate acts of embezzlement cannot be given in evidence upon a charge of but one. (Exparte Record, 11 Nev. 287.) Secondary evidence inadmissible until proof that other is out of power of the party offering it. (1 Greenleaf, 84; Hart v. Yunt, 1 Watts, 253.) To constitute embezzlement there must appear: 1. The agency. 2. Receipt of the money. 3. That it was received in course of employment. 4. That it was misapplied or converted. (Washington v. State, 72 Ala. 272; Exparte Hedley, 31 Cal. 108; Webb v. State, 8 Tex.App. 310; Brady v. State, 21 id., 659.) The instruction as to reasonable doubt was erroneous. (Palmerston v. Terr'y, 3 Wyo. 333.)

Charles N. Potter, Attorney General, for the State.

No previous demand is necessary to constitute the crime under Sec. 53 of Crimes Act. The indictment alleges the crime in the language of the statute, and is sufficient. (Lang v. State, 97 Ala. 41; State v. Washington, 41 La. Ann., 778; State v. Fornier, 12 Mont. 235; Wallis v. State, 16 S.W. 821.) There was sufficient proof of incorporation. (Calkins v. State, 18 O. St., 367.) Evidence is admissible of other acts of embezzlement by same party from the same person during the same employment. (People v. Nevce, 86 Cal. 393.) The separate monthly receipts did not necessarily constitute separate acts of embezzlement. For all that the testimony discloses, all of the money may have been embezzled at one time. The jury properly considered the evidence as showing one act of embezzlement. (Brown v. State, 18 O. St., 496; Gravatt v. State, 25 id., 162; Taylor v. State, 29 Tex.App. 466; State v. Pierce, 77 Ia. 245; Jackson v. State, 76 Ga. 551; Kerr v. People, 110 Ill. 629; State v. Noland, 111 Mo. 473.) An appellate court will not vacate a verdict in a criminal case where the guilt of the accused is clearly established, and another trial could not result differently. (State v. Czizek, 38 Minn. 192.)

GROESBECK, CHIEF JUSTICE. CONAWAY and CLARK, JJ., concur.

OPINION

GROESBECK, CHIEF JUSTICE.

Two assignments of error are made in the petition in error: (1) That the district court erred in overruling the demurrer to the indictment, and (2) that the court erred in overruling the motion of plaintiff in error for a new trial. Under the rules of this court, the second assignment of error renders available as assignments of error all the grounds set forth in the motion for a new trial.

There are forty distinct matters presented in this motion, one of which is that the verdict of guilty is not sustained by sufficient evidence and is contrary to law, and the other grounds relate to errors of law occurring during the trial, to the effect that the court overruled the demurrer to the indictment, the alleged errors in the admission of evidence, the refusal to give to the jury certain instructions requested by plaintiff in error, and the giving of certain instructions on behalf of the prosecution over the objection of the plaintiff in error.

We do not deem it necessary to pass upon all these alleged errors in detail, and we shall consider those only which in our opinion will dispose of the case.

1. The demurrer to the indictment was upon the ground that the facts therein alleged do not constitute a crime under the laws of this State. The charging part of the indictment is as follows:

"That Emil Edelhoff, late of the county aforesaid, on the thirtieth day of June in the year of our Lord one thousand eight hundred and ninety-three, at the county and State aforesaid, the said Emil Edelhoff being then and there a clerk, servant and employe of the Union Pacific Coal Company, a corporation duly existing under the laws of the State of Wyoming, and then and there having access to, control and possession of two hundred eight and 40-100 dollars, in lawful money of the United States of America, then and there the property of the said Union Pacific Coal Company and to the possession of which the said Union Pacific Coal Company, was then and there entitled, did while in such employment unlawfully and feloniously take, purloin, secrete and appropriate to his own use the money aforesaid then and there belonging to the said Union Pacific Coal Company as aforesaid, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Wyoming."

This indictment was drawn under section 53 of the Crimes Act (Ch. 73, Sess. Laws 1890) which reads:

"Every officer, agent, attorney, clerk, servant or employe of any person who, having access to, control or possession of any money, article or thing of value, to the possession of which his employer is entitled, shall, while in such employment, take, purloin, secrete or in any manner whatever appropriate to his own use, or to the use of others, any money, coin, bills, notes, credits, choses in action, or other property or article of value, belonging to or deposited with, or held by such person, in whose employment said officer, agent, attorney, clerk, servant or employe may be, shall be deemed guilty of embezzlement, and shall be imprisoned in the penitentiary for not more than fourteen years."

The indictment is challenged because it does not allege a demand for the money alleged to be embezzled, but this is not required except in sections 52 and 54 of the Crimes Act, and these sections, one preceding and one succeeding the section under which this indictment was drawn, severally relate to the embezzlement of public funds by an official who fraudulently fails or refuses to account for, pay and deliver to such person as may be legally entitled to receive the same, all moneys, choses in action and property which may have come into his hands by virtue of his office, either at the expiration of or during his term of office, and to the refusal of an attorney at law or person engaged in making collections for others, who having money or anything of value in his possession or under his control received for his client or employer, fraudulently refuses to pay over and deliver the same to his employer or client, or the person by them designated to receive the same, less the charges thereon, on reasonable demand. These sections, with the one under consideration, are independent of each other, and were doubtless enacted in order to cover every possible phase of the fiduciary relations generally arising in prosecutions for embezzlement. As the statute under which it is conceded this indictment was brought does not require a demand and refusal to pay over as an element of the crime of embezzlement, it is not necessary that such an allegation should appear in the accusation. State v. Tompkins, 32 La. Ann. 620; Wallis v. State (Ark.), 54 Ark. 611, 16 S.W. 821; State v. New, 22 Minn. 76; Hollingsworth, 111 Ind. 289, 12 N.E. 490.

The description of the property alleged to have been embezzled as lawful money of the United States of America is warranted by Sec. 143 of the Crimes Act, and by Sec. 3254 Rev. Stat., without specifying any particular coin, note or bill.

It appears to us that the indictment is sufficient and states an offense as defined by the laws of the State.

2. It is contended that the allegation in the indictment that the Union Pacific Coal Company whose property is alleged to have been embezzled was "a corporation duly existing under the laws of the State of Wyoming," is not sustained by the evidence, and that, although the bare allegation that said company was a corporation would have been sufficient, without alleging that it was a domestic corporation, yet such an allegation was a matter of description, an averment that must be proved as laid. The statute (Sec. 502, Rev. St.) provides that a copy of the certificate of incorporation of a domestic corporation duly certified by the secretary of State, under the great seal of the State shall be evidence of the existence of such incorporated company, and this is invoked as prescribing the exact proof required in showing the existence of such a corporation. The statute relating to the creation of corporations requires the execution of duplicate certificates of incorporation by the incorporators, one to be filed with the secretary of State and the other in the office of the clerk of the county wherein the business of the corporation is to be carried on. (Sec. 501, Rev. St.)

The evidence of the corporate existence of the Union Pacific Coal Company was shown by the production of the original certificate filed with the clerk of Carbon county, and by parol evidence to the effect that such corporation conducted and operated its business in that county and that defendant was employed by such corporation. Although the statute provides that the certified copy of the secretary of State is evidence of the existence of such corporation, it does not declare that this is the only evidence of such corporate existence that may be presented and so other evidence may be introduced to show that fact. The law was doubtless enacted to dispense...