State v. Blue

CourtSupreme Court of Utah
Citation17 Utah 175,53 P. 978
Decision Date04 June 1898
Docket Number903
PartiesSTATE, RESPONDENT, v. THOMAS J. BLUE, APPELLANT

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

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 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 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, in effect, that it was their duty to find the defendant guilty if they found that he had knowingly and intentionally, by general assignment, turned over his property, and the money in question, to the assignee for the benefit of his creditors and those of the bank, and it mattered not whether he did it with a felonious intent to defraud and cheat the city; and refused to charge, as requested by the defendant, that, in order to convict, they must find that he transferred the money in question to the assignee with the fraudulent intent to cheat and defraud the city. In giving this instruction and refusing the request, we think the court took an incorrect view of the law under our statutes. This would be so even if it were admitted that the first count of the information, the one under which the case was finally submitted to the jury, was drawn under subdivision 1, § 4603, Comp. Laws Utah 1888. While in this subdivision there is no special reference respecting the intent with which an appropriation of public money must be made in order to constitute a felony, still, from the language employed in the provision, and in the absence of district legislative command, the court will not infer that it was the purpose of the legislature to punish a man for an act committed without a guilty mind. In such case the general provision contained in section 4383 must control. It provides: "In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence." This section is found in the Penal Code under the head "Preliminary Provisions;" and, construing it in connection with the provision of section 4603, it seems clear that the legislature did not design the punishment of a public officer for an act committed innocently, without any criminal intent.

It is quite probable, because of the presumption of wrongful intent which would arise upon proof of the act, that an information drawn under the provisions of section 4603, which stated the offense in the words of the statute, would not be held bad for failure to aver the felonious intent; but, clearly, in such event the accused would have the legal right to rebut the presumption. The statute, at most, simply shifts the burden of proof, and does not dispense with the criminal intent. Such being the case, the court in no instance, under the statute in question, whether the intent be alleged or not, has the power to withhold the question of intent from the jury. Evil intent is the very essence of crime, and, whenever a person is convicted of an offense, such conviction carries with it the implication of moral turpitude, dishonesty, and fraud. The principles which make it essential that an evil intent accompany the act lie at the very root of public justice. The intent has always been the test of guilt. "Actus non facit reum nisi mens sit rea," is an ancient maxim, and indicates the true doctrine. In general, for an act to render a person a criminal,...

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5 cases
  • State v. Brown
    • United States
    • Utah Supreme Court
    • 5 Mayo 1911
    ...involved and the quotations from, and citation of, the cases, especially People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162, and State v. Blue, 17 Utah 175, 53 P. 978. Besides, court, in clear terms, declared and decided, not only that the charge as given was wrong, but also that "the accused h......
  • State v. Elton
    • United States
    • Utah Supreme Court
    • 28 Marzo 1984
    ...is that the doing of a wrongful act without the requisite culpable mental state does not constitute a crime. State v. Blue, 17 Utah 175, 181, 53 P. 978, 980 (1898). Nor does the harboring of a criminal mental state, not translated into a prohibited act, constitute a Under the Utah Criminal ......
  • State v. Hendrickson
    • United States
    • Utah Supreme Court
    • 25 Marzo 1926
    ...is such as to convince the understanding, that the Legislature could not have intended a literal interpretation. The case of State v. Blue, 53 P. 978, 17 Utah 175, is striking example. Blue was treasurer of Eureka City and was charged under Comp. Laws Utah 1888, § 4603, subd. 1, with the cr......
  • State v. Van Kuran
    • United States
    • Utah Supreme Court
    • 4 Junio 1902
    ... ... Messrs ... Powers, Straup & Lippman and H. E. Booth, Esq., for ... appellant ... Clearly ... there was error in the charge of the court upon the subject ... of character and in the refusal to give the instructions ... requested by the defendant. State v. Blue, 17 Utah ... 183; People v. Doggett, 62 Cal. 27; People v ... Shepardson, 49 Cal. 631; People v. Hancock, 7 ... Utah 177-8; Fields v. State, 11 Am. Rep. 771; ... Springfield v. State, 38 Am. St. 91; 5 Am. and Eng ... Ency. Law (2 Ed.), p. 867, and cases. The court charged the ... jury that ... ...
  • Request a trial to view additional results

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