Matters v. State
| Decision Date | 07 November 1930 |
| Docket Number | 27488 |
| Citation | 232 N.W. 781,120 Neb. 404 |
| Parties | THOMAS H. MATTERS v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Douglas county: JAMES M FITZGERALD, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
The words, " private person," contained in section 1 c. 95, Laws 1923, are used to distinguish a natural person from an artificial person, such as a corporation, copartnership, or joint stock company. The name, C. B. Miller, is sufficient to indicate a " private person," within the meaning of the statute.
An information for embezzlement by an agent sufficiently charges agency if in the language of the statute.
" The accused shall be taken to have waived all defects which may be excepted to by a motion to quash, * * * by demurring to an indictment or pleading in bar or the general issue." Comp. St. 1922, § 10113.
" A motion to quash may be made in all cases, when there is a defect apparent upon the face of the record, including defects in the form of the indictment or in the manner in which an offense is charged." Comp. St. 1922, § 10109.
As a rule, where different felonies of the same character and grade are charged in different counts of an information, it is within the discretion of the trial court whether the prosecutor shall be required to elect upon which count of the information he will rely for a conviction.
" This court, in a criminal action, will not interfere with a verdict of guilty, based upon conflicting evidence, unless it is so lacking in probative force that we can say, as a matter of law, that it is insufficient to support a finding of guilt beyond a reasonable doubt." Williams v. State, 115 Neb. 277, 212 N.W. 606.
A motion for a new trial in a criminal action, based upon alleged misconduct of the jury and bailiff, is addressed to the sound discretion of the trial court, and its ruling thereon will not be disturbed unless an abuse of discretion is shown.
The exclusion of competent evidence, cumulative in character, will not work a reversal, unless such exclusion has been prejudicial to the complaining party.
An attorney is incompetent to testify to any communications made to him by his client in that relation, or his advice thereon, without his client's con sent in open court or in writing produced in court; and the fact that no compensation is paid will not remove the seal of secrecy from the communications made to him.
Error to District Court, Douglas County; Fitzgerald, Judge.
Thomas H. Matters was convicted of embezzlement as an agent, and he brings error.
Affirmed.
O'Sullivan & Southard and M. O. Cunningham, for plaintiff in error.
C. A. Sorensen, Attorney General, and L. Ross Newkirk, contra.
Heard before GOSS, C. J., ROSE, GOOD, THOMPSON, EBERLY and DAY, JJ., and REDICK, District Judge.
Plaintiff in error, hereinafter designated defendant, was prosecuted on an information containing two counts; the first charging embezzlement as agent; the second charging larceny as bailee. A trial resulted in defendant's conviction on the first and acquittal on the second count. From a judgment imposing a prison sentence of from one to two years, defendant prosecutes error.
There are a large number of assignments of error, many of which are extremely technical. We shall consider such as seem to merit discussion.
Defendant demurred to the information, and at the close of all the evidence moved for a directed verdict of not guilty, on the ground that the first count of the information did not state an offense under the law. The precise points relied upon are: First, that it was not alleged that C. B. Miller, the owner of the fund alleged to have been embezzled, was a private person; and, second, that it did not allege the terms and conditions of the contract creating an agency between C. B. Miller and the defendant.
Section 1, ch. 95, Laws 1923, under which defendant was prosecuted, inter alia, provides: "If any clerk, agent, attorney at law, servant, factor or commission agent of any private person or any copartnership, except apprentices and persons within the age of eighteen years, or if any officer, attorney at law, agent, clerk, servant, factor or commission agent of any incorporated company or joint stock company, * * * shall embezzle," etc. The information merely charged the embezzlement of money from one C. B. Miller, without alleging that C. B. Miller was a private person.
We think the words "private person," as contained in the statute, are used to distinguish a natural person from an artificial person, such as a corporation, copartnership, joint stock company, etc. The name, C. B. Miller, is sufficient to indicate an individual or a "private person," within the meaning of the statute. So far as the failure to state the terms and conditions creating the agency existing between the defendant and C. B. Miller is concerned, it is sufficient to say that the information in this respect was in the language of the statute.
It has been frequently held that an indictment or information charging embezzlement is sufficient if it sets forth the crime in the language of the statute or the equivalent thereof. Leisenberg v. State, 60 Neb. 628, 84 N.W. 6; Bartley v. State, 53 Neb. 310, 73 N.W. 744; Chamberlain v. State, 80 Neb. 812, 115 N.W. 555; State v. Halbert, 115 Neb. 194, 212 N.W. 33. But these two assignments are unavailing for another reason. If the information was not sufficiently specific to satisfy the defendant, he was afforded a remedy by motion to quash. He failed to avail himself of such remedy.
Section 10113, Comp. St. 1922, provides: "The accused shall be taken to have waived all defects which may be excepted to by a motion to quash, * * * by demurring to an indictment or pleading in bar or the general issue." Section 10109, Comp. St. 1922, provides: "A motion to quash may be made in all cases, when there is a defect apparent upon the face of the record, including defects in the form of the indictment or in the manner in which an offense is charged." Failure to make the motion was a waiver of the right to attack the information for any defect that appears upon its face. Trimble v. State, 61 Neb. 604, 85 N.W. 844; Goddard v. State, 73 Neb. 739, 103 N.W. 443; Huette v. State, 87 Neb. 798, 128 N.W. 519; Green v. State, 116 Neb. 635, 218 N.W. 432; Lindley v. State, 117 Neb. 597, 221 N.W. 706.
Defendant asserts that there was error in overruling his motions to require the prosecutor to elect on which count of the information he would rely for a conviction. The motions were made at the close of the state's evidence and also at the close of all the evidence. It is a rule that, where different felonies of the same character and grade are charged in different counts of an information, it is within the discretion of the trial court whether the prosecutor shall be required to elect upon which count of the information he will rely for a conviction. In the instant case, the felonies charged, while growing out of the same transaction, are of the same grade, and the punishment is the same in each instance. Unless an abuse of discretion is shown which has been prejudicial to the rights of the defendant, an order overruling such motion will not cause a reversal of the judgment. The case was submitted to the jury upon both counts, but the jury acquitted the defendant on one count, and, under the circumstances, the failure to require the prosecutor to elect could not have been prejudicial to the defendant.
A number of assignments of error go to the sufficiency of the evidence to support the verdict. Defendant contends that the evidence is wholly insufficient to show that there was any agency, or that he received the money in the character of agent for Miss Miller.
Certain parts of the evidence, standing alone, would clearly support this contention. That Miss Miller drew her check for $ 200, payable to defendant, and turned the same over to him on the 6th day of October, 1927, and which check was cashed by defendant on the same or the next day, is not disputed. That the check was cashed and the money converted to defendant's use is beyond question. Defendant contends that the money was paid to him as a part purchase price of certain real property which Miss Miller was purchasing from him. However, at the time the check was given, the defendant gave to Miss Miller a receipt in the following form:
Defendant claims that he was selling the property; that he held title to it by contract. Miss Miller, on the other hand, testifies that defendant did not claim to be the owner, but that the property belonged to other persons. The form of the receipt issued by defendant indicates very clearly that he was receiving it to be used in purchasing property, and if he was purchasing he must have been purchasing for C. B. Miller. If he was acting...
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