Richberger v. State

• Citation: 90 Miss. 806,44 So. 772
• Decision Date: 14 October 1907
• Docket Number: 12,495
• Court: United States State Supreme Court of Mississippi
• Parties: GEORGE RICHBURGER v. STATE OF MISSISSIPPI

44 So. 772

90 Miss. 806

GEORGE RICHBURGER v. STATE OF MISSISSIPPI

No. 12,495

Supreme Court of Mississippi

October 14, 1907

FROM the circuit court of, second district, Coahoma county, HON SAMUEL C. COOK, Judge.

The appellant, Richburger, was indicted, tried and convicted of embezzlement, sentenced to the penitentiary for two years and appealed to the Supreme Court. The facts are fully stated in the opinion of the Court.

Affirmed.

J. W Cutrer, Alexander & Alexander, and George B. Power, for appellant.

It might have been competent for the state to have indicted and tried appellant for the embezzlement of a general balance due on his account, and this is what the state by indictment charged, and by its evidence sought to prove. The effect of the course taken by the state was that the entire history of the Jonestown Bank of Jonestown was going into, and a trial had, as though the issue were one between the bank and its depositors. The trial ceased to be one of defendant for embezzlement, and became a trial of the bank as to its dealings with the public and its customers.

There was a demurrer to the indictment, which was overruled, and this action of the lower court is assigned for error. We will not discuss this at length. The indictment did not state that appellant had in his possession the money of the bank in the said county and district. It alleged that he had under his care the said sum, which had come into his possession and had been entrusted to his care by virtue of his employment as cashier; but one can have under his care property in a different county from his residence, or in a different state. Money cannot be embezzled except by its being actually taken and appropriated. Embezzlement must occur where the money is. The force of this objection becomes apparent when we look to the proof, which shows that in fact the sum of $ 522.72 which was paid on the checks of Richburger, was not paid in this state but in Memphis, Tennessee. The indictment is for embezzling money alone, not checks, nor drafts, nor evidences of debt, but actual money. The money paid out on the checks for $ 522.72 was, when the checks were paid, not in Mississippi, but in Memphis, and the only reduction made in the assets of the bank thereby was to reduce, by that amount, its deposit in a Memphis bank.

The indictment was fatally defective for another reason. It was framed on our statute, which does not use the word "cashier." The persons mentioned in the statute, Code 1892, § 1058, are "director, agent, clerk, servant, or officer of any incorporated company." Appellant is not brought within any of these classes unless the court can assume, as a matter of law, that a cashier is within some one of these designations. The indictment does not so state. It was necessary therefore that the indictment should either allege that defendant was an agent, clerk, servant, or officer of the bank, or that he was cashier thereof, and that as such cashier he was an agent, clerk, servant or officer. The indictment being on a statute must conform strictly thereto. The demurrer to the indictment should have been sustained.

One of the first errors we notice, and which is a fatal one, is, that defendant was tried on an amended indictment which had not been amended as expressly provided by law. In Shurley v. State, 43 So. 299, decided April 1, 1907, this court held that Code 1906, § 1509, is mandatory, and that the amendment must be made by an order on the minutes specifying precisely the amendment made. It is a vicious and dangerous practice, and one subversive of the fundamental rights of the accused, to allow the district attorney to amend an indictment by erasing words and clauses, and by interlineations. The indictment in this case alleged embezzlement of money, the property of the Jonestown Bank. The state itself produced and introduced the character of the bank which showed that its corporate name was "The Jonestown Bank of Jonestown." The words, "of Jonestown," were as much of the corporate name as the first word "Jonestown," or the word "bank." It was the only rightful name that the bank had. When the state discovered this variance, it asked leave to amend, and this was allowed over the objection of appellant. Even when the amendment was made, the erroneous name was not stricken out and the true name inserted, but the indictment was altered by the district attorney so as to read "The Jonestown Bank, alias The Jonestown Bank of Jonestown." An alias is proper only where a person is known generally by two names and the grand jury does not know which is the true name, and in such case the indictment should aver that the true name is unknown to the grand jurors, but none of these facts or conditions are shown. It is simply a case where on the trial the state by its own proof developed a variance, and, to cure it, the district attorney, instead of having the court proceed in the manner expressly mapped out and required by Code 1906, sec. 1509, himself assumed to make the amendment by erasures and interlineations. Unless Shurley v. State is to be ignored, the judgment in this case must be reversed for this obvious error.

It must be noted that there was no effort on the part of the state to avoid the necessity for an amendment by introducing any evidence to show that the bank was usually known by the name of "The Jonestown Bank." In the absence of such showing an amendment giving an alias designation would be improper in any event; but, if it were necessary and proper, the amendment cannot be made except in the manner pointed out by the code.

On the motion of appellant, the court ordered the state to furnish a bill of particulars. As the offense had been charged in a general way, it was the right of the appellant to have such a bill of particulars furnished. 15 Cyc., 513. To secure such a bill of particulars Richburger filed a sworn application setting out the necessity for it and in what respect he would be prejudiced if it were not furnished. The court held his showing sufficient and sustained his application. And, thereupon, the state filed what purported to be a bill of particulars, but what, on the contrary, was a bill of generalities. A bill of particulars is allowed by law, and was ordered by the court in this case to make specific the charge and narrow the inquiry, to direct appellant's notice to the particular transactions relied on for a conviction, to enable him to prepare his defense as against the specific case to be made by the evidence in respect to the particular transactions constituting the crime. If the bill of particulars, instead of narrowing and making more specific the inquiry, goes far beyond the indictment itself and contains new and distinct charges and sets out incompetent and irrelevant matter prejudicial to defendant, then the bill of particulars becomes a mockery of justice. The requirement that the state furnish a bill of particulars was in the nature of a requirement that the state elect what it would stand on and give appellant notice thereof. The indictment was known to the parties to charge the embezzlement of a general balance of account, although not so framed as to show this. If it be insisted that it was competent for the state to stand on the indictment as drawn, and under the order for a bill of particulars give notice that the indictment and prosecution would be treated as if it were the embezzlement of the amount shown by the aggregate overdraft of defendant, the answer is that this was not done. On the other hand, the trial was not finally had for the embezzlement of a general balance, but for two specific items making up the sum of $ 522.72. The bill of particulars added insult to injury. The appellant, following his strict legal right, moved the court that the state be required to file a bill of particulars giving defendant information "as to the time and place when he, the said defendant, is alleged or charged to have received from the said Jonestown Bank the money stated in the indictment to have been by him so received, and the person from whom he, the said defendant, so received the said sum of money so alleged to have been embezzled." Instead of narrowing the inquiry down to some one item, the bill of particulars enlarged the charge in many ways; instead of giving notice of the time and place and the amount on which the state would elect to stand, and to meet which the appellant would be called on to produce evidence, the bill of particulars, which, when filed, became part of the charge against defendant, alleged that the state would prove on the trial that in 1903, three years before the act of embezzlement in question, appellant was indebted to the bank in the sum of $ 5,000, for which he gave an insolvent note, and that thereafter he began to appropriate funds of the bank by checking them out from time to time until January, 1906, the defendant took at divers and sundry times various sums of money belonging to the bank and squandered it in gambling, the funds amounting to in the aggregate $ 8,655.59. The facts which appellant wished to have disclosed by the bill of particulars, the state refused to give, viz., the dates and amounts of the alleged embezzlement. The bill of particulars went further and stated that it was shown that appellant embezzled more than the entire capital of the bank and gambled it off, and fled, and returned, and confessed to various persons that he had embezzled the funds of the bank, and "wrecked and robbed the bank and was sorry that he did so and asked to be forgiven for it." And, as if the wrong and injustice to appellant was not enough, the bill of particulars went on to allege that the state would show that defendant, knowing that the bank was insolvent, induced people to put their...