State v. Bickford

• Citation: 147 N.W. 407,28 N.D. 36
• Parties: STATE v. BICKFORD.
• Decision Date: 22 May 1914
• Court: United States State Supreme Court of North Dakota

28 N.D. 36

147 N.W. 407

STATE

v.BICKFORD.

Supreme Court of North Dakota.

Dec. 2, 1913.

On Rehearing, May 22, 1914.

Syllabus by the Court.

Evidence examined and held sufficient to justify a conviction of the crime of embezzlement, under sections 9204, 9205, R. C. 1905.

Information examined and held to charge one and not several offenses.

Section 9205, R. C. 1905, describes but one general crime of embezzlement, which may be committed in different ways, and the same may be charged in different counts alleging the various ways by which the same was accomplished.

Where the statute declares an act unlawful when perpetrated in any one or all of several modes, the information may charge the act in separate counts, basing each count upon the different modes specified.

Although it may be the general rule in the case of a felony that the court will permit the prosecution to give evidence of only one felonious transaction, it is also the rule that when it appears on the opening of the case and during the trial that there is no more than one criminal transaction involved, and the joinder of the different counts is meant only to meet the various aspects in which the evidence may present itself, the court will not restrict the prosecuting officer to particular counts, and will suffer a general verdict to be taken on the whole.

A verdict of “guilty of embezzlement as charged in the information” is sufficient, in a prosecution for having committed the crime of embezzlement condemned by section 9205, R. C. 1905, in the different manners described in said section. Such a verdict is a general verdict and has the same effect as the verdict of “guilty” provided for in section 10044, R. C. 1905.

Where the evidence shows a cumulation of peculations, the aggregate misappropriation may be treated as one crime and all the peculations as parts of the one offense, and the aggregate shortage proven may be more or less than the sum stated in the information.

It is not necessary that the exact sum embezzled should be alleged, nor is it necessary to prove the exact sum as charged.

The crime of embezzlement by a public officer does not merely consist in failing to turn over all moneys to the state at the time of the relinquishment of his office, but in having fraudulently converted money or securities while in that office. The mere fact, therefore, that a friend may come to one's rescue and furnish money sufficient to make good a shortage on a final accounting does not in any way negative the fact that prior to such final accounting money has been fraudulently converted; that is to say, embezzled.

A special deposit is a bailment of certain specified property, which can be and is to be identified and returned.

A special deposit, as used in paragraph 14 of section 111, R. C. 1905, implies the placing of money in a bank for safe-keeping, so that the banker is a bailee and must keep the identical money without mingling it with the other funds of the bank, to be returned in kind to the state treasurer or such person or persons as he may direct (citing Words and Phrases, vol. 7, p. 6574).

A deposit in a bank is not a special deposit, where the banker is allowed to loan out or to use the money deposited. A special deposit involves safe-keeping merely and the return of the identical money or articles deposited.

The crime of embezzlement may be committed by a fraudulent failure to account for funds as well as by physical confiscation.

The order of proof upon the trial of a cause is largely within the control of the trial judge, and his discretion must largely control.

The objection that the testimony “is not the best evidence, incompetent as such, irrelevant, and immaterial,” does not raise or suggest the objection that such testimony is not proper on rebuttal.

On Rehearing.

A constitutional objection to a criminal statute may be raised on a petition for a rehearing, even though it has not been raised either upon the trial or upon the original appeal.

That part of section 9205, R. C. 1905, which provides that, in case of conviction, the defendant shall, in addition to serving a term of imprisonment, “pay a fine equal to double the amount of money or other property so embezzled as aforesaid, which fine shall operate as a judgment at law on all the estate of the party so convicted * * * and shall be enforced by execution or other process for the use of the state, county, precinct, district, town, city or school district whose moneys or securities have been so embezzled,” imposes a fine and did not merely include in said statute a provision for the compensation of the state or municipality injured.

That part of section 9205, R. C. 1905, which provides that the defendant, upon conviction, shall “pay a fine equal to double the amount of money or other property so embezzled as aforesaid, which fine shall operate as a judgment at law on all the estate of the party so convicted and sentenced, and shall be enforced by execution or other process for the use of the state, county, precinct, district, town, city or school district whose moneys or securities have been so embezzled,” is unconstitutional in that it violates section 154 of the Constitution of North Dakota, which provides that “the interest or income of this (land grant) fund, together with the proceeds of all fines for violation of state laws and all other sums which shall be provided by law, shall be faithfully used and applied each year for the use of the common schools of the state.”

When a part of a statute is unconstitutional, that fact does not compel the courts to declare the remainder void, unless the unconstitutional part is of such import that the other parts of the statute, if sustained without it, would cause results not contemplated or desired by the Legislature. The question to be determined is whether the obnoxious part is an inducement of the whole act or whether it is merely an incident thereto. The test to be applied in determining whether the unconstitutional provision in a statute invalidates the whole enactment is the answer to the following questions: (1) Are the constitutional and the unconstitutional parts capable of separation so that each may be read and may stand by itself? (2) Is the unconstitutional part so connected with the general scope of the whole as to make it impossible to give effect to the apparent intention of the Legislature if the clause or part is stricken out? (3) Is the insertion of words or terms necessary in order to separate the constitutional part from the unconstitutional part and to give effect to the former only?

Section 9205, R. C. 1905, may be enforced and sustained even after eliminating therefrom the provision which relates to the fine. Even after the excision of such part of the statute, it can be presumed that the Legislature would have passed the act, even though it had realized that the unconstitutional part would be eliminated therefrom.

Appeal from District Court, McLean County; Crawford, Judge.

George L. Bickford was convicted of embezzlement as a public officer, in violation of Rev. Codes 1905, § 9205, and appeals. Modified and affirmed.

Defendant was convicted of the crime of the embezzlement of state funds and securities, under sections 9204 and 9205, R. C. 1905, and an appeal has been taken to this court. There is but little conflict between counsel as to the particular acts done or omitted. The controversy is almost entirely over the motives which caused the same to be done or omitted, and the conclusions of fact and of law to be drawn therefrom. According to the state's theory of the case, which at any rate found some support in the evidence: On January 4, 1909, the defendant took charge of the state treasurer's office. At this time the Bowbells bank was not a state depository, although the defendant's predecessors had evidently deposited $5,000 therein. On January 9, 1909, the defendant deposited $20,230 of state funds in this bank on open account and carried it on such open account until February, 1909. The Bowbells bank had a capital of $10,000, with no surplus; the defendant owning 48 shares, his wife 10, and his brother 42. The bank was not named as a regular state depository until January, 1910, and then only for the sum of $5,000, and during the times mentioned there was in this bank, in addition to the sum herinafter mentioned, the $5,000 on open account which was made by the defendant's predecessors. In February, 1909, the open account deposit was transformed into a certificate of deposit for $20,230.

In regard to this transaction, the defendant testified: “When we transferred the open account by means of this check for $20,230 into the form of a certificate of deposit, I still had the same amount of money on deposit in the First State Bank of Bowbells as I had before, so far as the state was concerned. The certificate of deposit register showed that I had $5,000 subject to check and the certificate of deposit. It would not appear upon any books or any report I would have to make, as a deposit in the First State Bank of Bowbells, a mere superficial investigation, unless a person went into the cash drawer and examined the items themselves, they would not know I had $25,000 in the bank belonging to the state.”

In February, 1909, the county treasurer of Barnes county sent in his report of collections of school funds, and with it sent his official checks on various Valley City banks, aggregating $25,215.26. Between the 1st of February and the middle of March, 1909, the defendant sent these checks to the Bowbells bank. They were collected by the bank, and the bank retained the money. The defendant did not take a certificate of deposit, nor did he carry the amount on an open account. He merely took the bank's receipt for the money. On cross-examination he said: “Prior to the 19th day of March I had on deposit of state money in the First State Bank of Bowbells $5,000 in round numbers on open account, $20,230...