State v. Baumhager

• Decision Date: 03 August 1881
• Citation: 28 Minn. 226,9 N.W. 704
• Parties: STATE OF MINNESOTA v BAUMHAGER.
• Court: Minnesota Supreme Court

28 Minn. 226

9 N.W. 704

STATE OF MINNESOTAvBAUMHAGER.

Supreme Court of Minnesota.

Filed August 3, 1881.

Appeal from judgment of conviction, district court, county of Scott.

W. J. Hahn, Att'y Gen., for the State.

C. D. O'Brien, for defendant.

MITCHELL, J.

The defendant was indicted for the crime of embezzlement of public moneys entrusted to him as county treasurer of Scott county. Having been convicted and sentenced, he now appeals from the judgment, and assigns three grounds of error: First, insufficiency of the indictment; second, errors in the rulings of the court during the trial; and, third, insufficiency of the evidence to sustain the verdict.

The objection to the indictment is that it does not sufficiently aver the office of defendant or the character of the funds taken. The averments of the indictment in these regards are substantially the same as those contained in the indictment in the case of State v. Munch, 22 Minn. 67, which was held sufficient by this court. We consider the indictment good. The only exception taken by defendant upon the trial which we deem necessary to notice, (except that to the charge of the court,) is that to the ruling of the court excluding his offer to show, by cross-examination of D. L. Howe, a witness for the state, that the witness, in his official capacity as one of the county commissioners, visited the office of defendant, the county treasurer, on the thirteenth of November, 1880, and on examination of the office there was found to be a surplus of assets of some $250 over and above the amount with which defendant was charged on the county auditor's books. The objection made to this by the state was that it was not cross-examination. The state had examined the witness solely as to the fact that a certain county order was in the treasurer's office on the ninth of June preceding.

The offer would not have been legitimate cross-examination, and therefore the court properly excluded it. The defendant also excepted to that part of the charge of the court to the jury defining what would be conversion or evidence of conversion of public funds. This really raises in another form the same question raised by the objection, that the evidence was insufficient to sustain the verdict, and hence both will be considered together. Upon the trial the state produced evidence proving, or fairly tending to prove, the following facts: During the months of May and June, and up to the twenty-second of the latter month, one John J. Ring was treasurer of the county, and defendant his deputy; that after the first week of June, Ring was very little in the office, the business being principally transacted by defendant as his deputy. While Ring was thus treasurer he kept a book in the office, showing all orders redeemed by him.

On the fifth of June a county order bearing date June 1st, for $53.25, was duly issued by the county to one Mat. Meyer, who presented the order on or about the same day at the county treasurer's office for payment, when it was paid and taken up by the county treasurer or his deputy, but not marked paid or redeemed, as required by statute. This order was, June 9th, still in the office of the county treasurer, among the papers and vouchers of the office, and not marked redeemed. Ring ceased to be county treasurer and vacated the office June 21st, never having sold the order or delivered it to any one, or taken it out of the office, or returned it to the county auditor as redeemed by him. Defendant was appointed Ring's successor, qualified, and entered upon the duties of the office of county treasurer, and took possession of the office June 25th.

On the twelfth of November following, defendant marked this order on its face as redeemed by himself on that day, and made an entry in the book kept in the office for the purpose of showing the amounts of money received and paid out by the county treasurer, crediting himself with having paid out that day the sum of $53.25, by redeeming the order referred to.

On the thirtieth of November following the defendant returned this order, with others, to the county auditor, as orders redeemed by him, for the purpose of obtaining credit therefor on the auditor's books; and the county auditor gave him credit for it on the books of the office, in which he is required by law to keep an account current with the treasurer of the county. It does not appear that there was any settlement made by the county auditor with the defendant as county treasurer at that time, except as above stated. This order had never been returned to the auditor by any one else, or any credit therefor given to any one else. At the time this order was thus returned by defendant, and credit obtained by him therefor, there was in his hands of county funds, which he had received as county treasurer, the sum of over $5,000. The state offered no other evidence of an actual conversion of public funds by defendant; nor that there was a shortage or general deficiency of defendant's accounts as county treasurer. The defendant offered no evidence in his own behalf whatever.

The question now is, would the above facts justify the jury in finding that defendant actually converted to his own use $53.25...