Mills v. State

• Decision Date: 03 January 1898
• Citation: 73 N.W. 761,53 Neb. 263
• Parties: MILLS v. STATE.
• Court: Nebraska Supreme Court

53 Neb. 263

73 N.W. 761

MILLS

v.STATE.

Supreme Court of Nebraska.

Jan. 3, 1898.

Syllabus by the Court.

1. In a prosecution by information, the complaint and information must charge the same offense, but it is sufficient if the charge in the information is substantially the same as that alleged in the complaint. If this is so, a plea of no preliminary examination, on the ground of a variance between the complaint and the information, is without force. Cowan v. State, 35 N. W. 405, 22 Neb. 519;Hockenberger v. State, 68 N. W. 1037, 49 Neb. 706.

2. If the identity of the offense charged is preserved, the statement of it in the information, or counts thereof, may be varied from that of the complaint to meet a possible state of the proof.

3. The word “embezzle” includes within its import the “conversion to his own use” as alleged in an information against one accused of embezzlement, and it does not constitute an information fatally defective, for uncertainty as a plea, that the two are joined by the copulative “and.” The same is also true of the first and any other word or set of words used to express the manner of the commission of the crime.

4. In an allegation of an information of the crime of embezzlement, it was stated that the embezzlement was of the sum of $6,000 in money. Held to be a sufficient expression of the value, the presumption being that it was lawful money.

5. By section 124 of the Criminal Code, any person who advises, aids, or participates in the embezzlement of public money by the officer or person charged with the collection, receipt, safe-keeping, transfer, or disbursement of such money is himself guilty of embezzlement. The words “any person” refer to all, and are not confined in meaning to a person or persons, or officer or officers, in some manner intrusted with the collection, handling, or care of public money.

6. An instruction which consisted of quotation of the main portion of the section of the Criminal Code under which the prosecution was instituted held not improper or misleading.

7. An instruction in this cause in regard to consideration of circumstances held proper, and, when construed with the other instructions, not misleading.

8. Instructions to the jury are to be considered together, and construed as a whole; and if, so considered and construed, they are correct, it is sufficient.

9. Certain instructions examined, and held applicable to the evidence herein, and proper.

10. Mere nondirection does not furnish sufficient reason for reversal on review, unless proper instructions have been requested and refused. Hill v. State, 60 N. W. 916, 42 Neb. 503;Pjarrou v. State, 66 N. W. 422, 47 Neb. 294.

11. Objection to the admission of evidence examined, and held properly overruled.

12. To entitle a party to a new trial on the ground of newly-discovered evidence, it must appear that the applicant for the new trial could not “with reasonable diligence have discovered and produced [such evidence] at the trial.” Cr. Code, §§ 490, 492.

13. Evidence held sufficient to sustain the verdict.

Error to district court, Harlan county; Thompson, Judge.

Benjamin D. Mills was convicted of embezzlement, and brings error. Affirmed.

Jas. McNeny and Thos. Darnall, for plaintiff in error.

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

HARRISON, J.

The plaintiff in error was by an information filed in the district court of Harlan county charged in the seven counts thereof with the crime of embezzlement. After some preliminary pleas were heard and decided in accordance with motions presented and sustained, the objects of which were that the state be required to elect on which count or counts of the information it would stand and proceed with the prosecution, the state elected to proceed under the first and fourth counts. The plaintiff in error pleaded not guilty, and a trial resulted in his conviction, and sentence to a term of imprisonment in the penitentiary, and to pay a fine in double the amount which by the verdict he was adjudged guilty of embezzling. The prosecution was instituted for an alleged violation of the provisions of section 124 of the Criminal Code (Comp. St. 1897, p. 1328), which, to the extent we need notice it, is as follows: “If any officer or other person charged with the collection, receipt, safe-keeping, transfer or disbursement of the public money, or any part thereof, belonging to the state, or to any county, or precinct, organized city or village, or school district in this state, shall convert to his own use, or to the use of any other person or persons, body corporate, association or party whatever, in any way whatever, or shall use by way of investment in any kind of security, stock, loan, property, land or merchandise, or in any other manner or form whatever, or shall loan, with or without interest, to any company, corporation, association, or individual, any portion of the public money, or any other funds, property, bonds, securities, assets, or effects of any kind, received, controlled, or held by him for safe-keeping, transfer or disbursement, or in any other way or manner, or for any other purpose; or if any person shall advise, aid or in any manner participate in such act, every such act shall be deemed and held in law, to be an embezzlement of so much of the said moneys or other property, as aforesaid, as shall thus be converted, used, invested, loaned or paid out as aforesaid, which is hereby declared to be a high crime, and such officer or person or persons shall be imprisoned in the penitentiary not less than one year or more than twenty-one years, according to the magnitude of the embezzlement, and also pay a fine equal to double the amount of money, or other property so embezzled as aforesaid.” It was charged in the first count of the information: “That Ezra S. Whitney, late of said county, on the 31st day of December, 1894, in the county of Harlan, state of Nebraska, being an officer, to wit, being the county treasurer for the said county of Harlan, being charged as such officer with the collection, receipt, safe-keeping, transfer, and disbursement of the public moneys belonging to said county, certain of said moneys, to wit, six thousand dollars of the public moneys belonging to said county, did unlawfully and fraudulently embezzle and convert to his own use, which said moneys had come into the possession and custody of the said Ezra S. Whitney by virtue of his said office, and in his discharge of the duties thereof. And before said embezzlement, conversion, and felony was committed as aforesaid by the said Ezra S. Whitney, to wit, on the 31st day of December, 1894, in the county of Harlan aforesaid, one Benjamin D. Mills unlawfully, purposely, fraudulently, corruptly, and feloniously did then and there procure, advise, incite, aid, and abet the said Ezra S. Whitney in the perpetration of said embezzlement and conversion in the manner and form aforesaid, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Nebraska.” And in the fourth: “That the said Ezra S. Whitney, late of said county, on the 31st of December, 1894, in the county of Harlan and the state of Nebraska, being an officer, to wit, being the county treasurer for the said county of Harlan, and being charged as such officer with the collection, receipt, safe-keeping, transfer, and disbursement of the public moneys belonging to said county, certain of said moneys, to wit, six thousand dollars of the public moneys belonging to said county, did unlawfully and fraudulently loan and convert to the use of the said Benjamin D. Mills, which said money had come into the possession and custody of the said Ezra S. Whitney by virtue of his said office, and in his discharge of the duties thereof, and had been received and was controlled and held by him, the said Ezra S. Whitney, for safe-keeping, transfer, and disbursement as the county treasurer as aforesaid. And the said Benjamin D. Mills, then and there being, did then and there, unlawfully, knowingly, and feloniously, advise and procure the said Ezra S. Whitney, county treasurer as aforesaid, to loan him, the said Benjamin D. Mills, said six thousand dollars of said public money, and the said Benjamin D. Mills did then and there receive from the said Ezra S. Whitney, treasurer of said Harlan county as aforesaid, said six thousand dollars, he, the said Benjamin D. Mills, then and there well knowing the same to be the public money of said Harlan county, received and held as aforesaid, with intent to embezzle and convert to the use of him, the said Benjamin D. Mills, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Nebraska.”

By plea in abatement the point was raised and presented in the trial court that the fourth count contained a charge of a crime which was not alleged in the complaint filed in the examining court; hence the plaintiff in error had never had or waived a preliminary examination on such accusation. There were four counts in the complaint filed with the justice of the peace, and when arrested and taken before the justice the plaintiff in error waived an examination. The first count of the complaint, after statements that Ezra S. Whitney was county treasurer of Harlan county, Neb., and of his duties in regard to collection, disbursement, etc., of the public moneys, charged that he did fraudulently, unlawfully, and feloniously convert to his own use, and embezzle, the sum of $700 of said public money, and that Benjamin D. Mills, plaintiff in error, unlawfully, purposely, and fraudulently, corruptly, and feloniously, did procure, advise, incite, aid, and abet the said Ezra S. Whitney in the perpetration of said embezzlement and conversion. The second count was in substance the same, except as to the amount alleged to have been embezzled, which was $600; also, the third,...