State v. Blue, 903

• Court: Supreme Court of Utah
• Writing for the Court: BARTCH, J.:
• Citation: 17 Utah 175,53 P. 978
• Parties: STATE, RESPONDENT, v. THOMAS J. BLUE, APPELLANT
• Docket Number: 903
• Decision Date: 04 June 1898

53 P. 978

17 Utah 175

STATE, RESPONDENT,
v.
THOMAS J. BLUE, APPELLANT

No. 903

Supreme Court of Utah

June 4, 1898

Appeal from district court, Fifth district; W. M. McCarty, Judge.

Thomas J. Blue was convicted of embezzlement, and appeals.

Reversed and remanded.

Williams, Van Cott & Sutherland, for appellant.

A. C. Bishop, Attorney General, for the State.

An indictment which charges several acts, any one of which would constitute an offense, but which as pleaded are parts of one and the same matter and taken together constitute an entire transaction resulting in the commission of the crime charges but one offense. People v. Hill, 3 Utah 334; People v. Thompson, 28 Cal. 215; People v. Frank, 28 Cal. 507; People v. De La Guerra, 31 Cal. 460; People v. Ah Own, 39 Cal. 604; Wharton's Criminal Law, 141.

While the general rule is that a defendant may put in issue his good character, this rule has its exceptions particularly in this class of cases. Some very eminent and respectable authorities go so far as to hold that evidence of good character cannot be proved except in doubtful cases. Commonwealth v. Webster, 5 Cush. 295; United States v. Roudenbush Baldwin, 514; State v. Hammill, 2 Parks Cr. 223; State v. Cole, 4 Park Cr., 35; United States v. Smith, 2 Bond 323. See also authorities cited in Am. and Eng. Enc., 2 Ed., Vol. 5, under note, page 868.

And while this rule may be unjustifiably severe and not in harmony with the broader and more liberal rules that prevail at the present time, it is universally held, that while evidence of general character is admissible in a criminal prosecution it is entitled to little weight unless where the fact is dubious or the testimony presumptive. State v. Wells, 1 Am. Dec. 211; State v. Barth, 60 Am. Rep. 496; State v. Northrup, 30 Am. Rep. 408; Dupree v. State, 73 Am. Dec. 422.

He admits every material allegation charged in the information, excepting that he denies any fraudulent or criminal intent. But from the doing of this act the law presumes such intent. State v. Nolan, (Mo.), 19 S.W. 717; Phillips v. State, 17 Ga. 459; State v. Hurds, 19 Neb. 317.

The intent which is mentioned in the text books of criminal law as essential to constitute a crime is not necessarily an evil or wrongful intent beyond that which is involved in the prohibited act. Whatever one voluntarily does he of course intends; and whenever the statute has made an act criminal a party voluntarily doing the prohibited act is chargeable with the crime. State v. Trolson, (Nev.) 32 P. 930; State v. Halsted, 41 N. J. L. 552; State v. Gwoonow, 65 Me. 30. Bishop on Criminal Law, secs. 295, 296 and 300, and cases there cited.

BARTCH, J. MINER, J., ZANE, C. J., concurring.

OPINION [53 P. 979]

[17 Utah 177] BARTCH, J.:

The defendant was convicted of the crime of embezzlement, and, upon his motion in arrest of judgment having been overruled, and sentence of imprisonment pronounced he appealed to this court. Upon his arraignment he demurred to the information, inter alia, on the grounds that it charged two offenses, neither of which was charged in the complaint filed before the committing magistrate, and [17 Utah 178] that he had never had a hearing or been committed or bound over on either of the charges contained in the information. The demurrer was overruled, and the action of the court is assigned as error.

The complaint filed with the magistrate, and upon which the defendant was committed and the prosecution founded, charged him, while treasurer of Eureka City, and having in his custody $ 674.68 of the city's money, with having (1) appropriated the same to his own use, and to the use of parties unknown; (2) failed and neglected to keep the same in his possession until delivered and paid by authority of law; and (3) deposited the same with George Arthur Rice & Co., a banking corporation of Eureka City. As will be observed, the complaint contains three counts, each of which relates to the same transaction. It thus charges but one offense, agreeably to section 4933, Comp. Laws Utah 1888. The offense is contained in the first and third counts, and the charge in effect is that the accused appropriated and embezzled the money by depositing it with the corporation mentioned. This disposition of the public money was one of the essential facts in the establishment of the charge against the prisoner, and the failure to keep the same, which is charged in the second count, was simply the corollary of the charge in the first and third counts. The commitment, as appears from the transcript, among other things relating to the same transaction, states that the appropriation was made by the "unlawful and felonious depositing of public money by a public officer with a bank," and that the defendant committed the offense. In view of this commitment, we think the objections to the information cannot avail the defendant, especially as the prosecution were compelled to elect on which count they would [17 Utah 179] rely. It is true, the information contained two counts; but both counts charge the same offense, committed at the same time and place, and relate to the same subject-matter. This is a substantial compliance with the law in force at the time the offense was alleged to have been committed.

The appellant also complains of the instructions of the court to the jury, respecting the question of intent. It appears from the evidence that, at the time of the commission of the alleged offense, the defendant was the treasurer of Eureka City; that, as such treasurer, he received from time to time various sums of money, and deposited the same with the bank of George Arthur Rice & Co., of which bank he was cashier, and was also a member of the company; that the bank made a deed of assignment, whereby it conveyed all its property, including the city's money, to one William Hatfield, for the benefit of its creditors; that at the time of the assignment there was a balance due the city of $ 674.68; and that the defendant was a party to the assignment. Under these facts, the court charged the jury,...