State v. Boggs

• Decision Date: 22 June 1914
• Docket Number: 29251
• Citation: State v. Boggs, 166 Iowa 452, 147 N.W. 934 (Iowa 1914)
• Parties: STATE OF IOWA, Appellee, v. E. A. BOGGS, Appellant
• Court: Iowa Supreme Court

147 N.W. 934

166 Iowa 452

STATE OF IOWA, Appellee, v. E. A. BOGGS, Appellant

No. 29251

Supreme Court of Iowa, Des Moines

June 22, 1914

Appeal from Grundy District Court.--HON. CHAS. E. RANSIER, Judge.

PROSECUTION for larceny by embezzlement. The defendant was indicted under Code § 4842. The specific charge was that he fraudulently embezzled and converted to his own use the sum of $ 350 collected by him as agent of, and for the use of the Farmers' Savings Bank of Morrison, Iowa. There was a verdict and judgment of guilty, and the defendant appeals.

Affirmed.

J. C Murtagh, F. F. Dawley and C. E. Wheeler, and Chas. T. Rogers for appellant.

Geo. Cosson, Attorney General, A. B. Lovejoy, and Williamson & Willoughby, for the State.

EVANS, J. LADD, C. J., and WEAVER and PRESTON, JJ., concur.

OPINION

EVANS, J.

The Farmers' Savings Bank was a corporation doing business at Morrison, Grundy county, Iowa. It had a capitalization of $ 10,000. The witness Reimers was its cashier and had its active management. The witness Porter was its president and principal stockholder. He was also cashier of the Reinbeck State Bank. The witness Kingsbury was assistant cashier of the Reinbeck State Bank, and was also interested in the bank at Morrison. The defendant resided at Waterloo, and was engaged in the granite and monument business. His business consisted of taking and filling orders for monuments, and his territory extended to all parts of the state. His method of doing business was to obtain from the customer a written order for a monument and a written promise to pay a fixed sum therefor. In August, 1910, he appeared at the bank at Morrison and made the acquaintance of Reimers and then and there borrowed the sum of $ 500. He put up with Reimers at the same time written contracts of customers for monuments for the amount of the loan. A few days later he borrowed more, and then more, and then more, until he had borrowed the sum of $ 62,000 within a period of less than one year. In connection with the earlier loans obtained, contracts to an equal amount were put up with Reimers; but the amount of the later loans obtained soon outstripped the contracts put up, so that in August, 1911, the indebtedness of $ 62,000 had no other security behind it than monument contracts to the extent of about $ 12,000. The state introduced evidence to the effect that these contracts were indorsed in blank and delivered to Reimers as collateral security to the sum total of indebtedness; also that, at the time Reimers agreed to make loans upon such collateral, the defendant agreed to do all the collecting of such collateral security and to turn the proceeds thereof into the bank.

The defendant testified that the contracts in question were not left with Reimers as collateral security, but were left with him for safe-keeping only, and that the defendant reserved to himself at all times the full title and control of such contracts.

Among the contracts indorsed and delivered to Reimers was one for $ 350, signed by F. E. Nelson. On November 9, 1911, the defendant collected the same, and converted the proceeds to his own use. This prosecution is based upon the alleged fraudulent conversion of the proceeds of the Nelson contract. The principal issues of fact upon the trial were:

(1) Was the Farmers' Savings Bank the holder of such contract as collateral security at the time of its collection?

(2) Was the defendant acting as agent for such bank in the collection of the same?

(3) Did he act with fraudulent intent in the conversion of the same?

These issues were submitted to the jury with express instructions in relation thereto. The necessary effect of the verdict was to find adversely to the defendant on each issue.

Before the trial an application for a change of venue from Grundy county was presented by the defendant. After the verdict a motion in arrest was filed on the ground of the insufficiency of the indictment. The foregoing outline is sufficient as a preliminary statement to a more detailed consideration of the specific errors assigned.

I. Appellant's first complaint is directed to the refusal of his application for a change of venue from Grundy county. The ground of the application was alleged local prejudice in such county. The application was in statutory form, and was supported by the affidavits of three persons. It was further supported by the showing of certain newspaper publications which are alleged to have inflamed the public mind.

Under Code, section 5348, the court is charged with the duty of "the exercise of a sound discretion" in passing upon such application. The question before us is whether such discretion was abused by the district judge in the present case. A careful examination of the record satisfies us otherwise. The showing on behalf of defendant, if it stood uncontradicted, was not strong. The bank at Morrison was owned by comparatively few persons, and these owners bore all the loss inflicted by the heavy borrowing of the defendant. Depositors were not affected. The resentment usually attendant in a community where many people have suffered loss was not present. That such a transaction as here outlined could not escape public notice goes without saying. But this would be true at any time or place whenever or wherever it should receive publicity, regardless of the particular locality. The principal complaint is directed against certain newspaper publications. The only publications shown in Grundy county were those of the Grundy Democrat, the Grundy Republican, and an unnamed paper at Reinbeck. The first publication occurred in January, 1912, in the Grundy Democrat, and this purported to be a rehearsal of testimony given by Boggs himself in a certain hearing at Waterloo before a referee. We infer from the record that this was a proceeding for the discovery of assets. The only sensation in the publication was the story of the defendant himself as to his financial relations to the bank at Morrison and other creditors. There was nothing inflammatory in any of these articles. In one of them the defendant is referred to as "Get-Rich-Quick-Wallingford Boggs." This expression is pressed upon our attention. It would require undue sensibilities to see in this expression in a newspaper article evidence of such local prejudice in Grundy county as would warrant the district court in granting a change of venue. Readers of newspapers put up with more lurid expressions every day and forget them as readily as they read them. The other publications presented in support of the application occurred in the Waterloo newspapers. It was shown that these papers circulated in Grundy county. The extent of the circulation was not shown. These publications dealt principally with the evidence of the defendant while it was being given before the referee in January, 1912, as before indicated. No attempt was made to show to what extent these articles were read in Grundy county. These articles were necessarily sensational in their facts, in that they reproduced the testimony of the defendant. But they were not inflammatory in any other sense. Indeed, some of their intimations were that the defendant would be able to clear himself and to put the blame on other shoulders. These are indicated by the following excerpts:

Mr. Boggs has promised to give an accounting of his investment of the funds secured by him.

It developed yesterday that Mr. Boggs has no assets and that he has lost all the money in an effort to build up the business of the granite company, which he attempted to re-establish on a paying basis after it had all but gone out of existence through financial embarrassments.

Put Money into Works.

According to those interested in the prosecution of the case, it is believed that Mr. Boggs either gambled away some of the money in his or another's name or that he has a large sum "salted down" somewhere. Mr. Boggs, however, denies the allegation, declaring that he has expended every dollar of it in an attempt to place the Iowa Granite Company on a paying basis.

The examination of Mr. Boggs, was commenced at the instance of Attorney H. B. Bois for the plaintiff bank. Judgment in the sum of $ 2,000 had been rendered against the defendant and the sheriff returned the execution unsatisfied.

People are Amazed.

Seldom are the people of Waterloo confronted with a case so full of amazing incidents and the courthouse today is likely to present a lively scene when the time approaches for the hearing.

It is expected that Mr. Boggs will tell all he knows about the money and the uses to which it was put. One of the things that seem extraordinary to the average citizen is the self-confidence exhibited by Mr. Boggs, who appears to feel that everything will come out all right and who is much incensed at the notoriety given him and his methods by the newspapers.

Papers Copy the Story.

So remarkable was the case with which Mr. Boggs is said to have secured the vast amounts from the bankers and other individuals that the stories appearing in Waterloo papers have been copied from one end of the country to the other, many of the big dailies featuring the story.

Friends of the witness are satisfied that he can explain in detail just exactly where the money and while admitting he made serious mistake in trying to finance the company as long as he did the consensus of opinion seems to be that he has some way or other "salted" a large amount.

Monumental Blunders.

Mr. Boggs while on the witness stand at the hearing on Monday stated that he would tell how the money was spent and it is likely that more light will be cast on the whole business today.

The majority of the opinions heard favor Mr. Boggs in the fact that they seem to set the whole...