State v. Brame

• Citation: 63 N.W. 250,61 Minn. 101
• Parties: STATE v. BRAME.
• Decision Date: 10 May 1895
• Court: Minnesota Supreme Court

61 Minn. 101

63 N.W. 250

STATE

v.BRAME.

Supreme Court of Minnesota.

May 10, 1895.

(Syllabus by the Court.)

1. In a complaint for larceny, under subdivision 2, § 415, Pen. Code (Gen. St. 1894, § 6709), it was alleged that the money came into defendant's possession as agent of the owner. The evidence was that defendant was an attorney at law, and that certain accounts were placed by the owner in his hands for collection, and that the money misappropriated was received by him in payment of these accounts. Held, that there was no variance between the complaint and the proof.

2. Evidence held sufficient to justify the verdict.

Appeal from municipal court of Minneapolis; Andrew Holt, Judge.

C. E. Brame was convicted of embezzlement, and appeals. Affirmed.

Charles W. Tankersley and C. E. Brame, for appellant.

David F. Simpson and M. D. Purdy, for the State.

MITCHELL, J.

The defendant was convicted, under subdivision 2, § 415, of the Penal Code (Gen. St. 1894, § 6709), of embezzling nine dollars, the property of one Hyatt, which he had in his possession as agent of the owner. The defendant is an attorney at law, and a number of small accounts against various parties were placed in his hands for collection by Hyatt, through his agent, Hogue, and the money alleged to have been embezzled was part of the money collected by defendant on one of these accounts. The defendant asserts the right to retain the money, and apply it in payment of fees which he claims were due him for prosecuting suits for the collection of some of the other accounts which Hyatt had placed in his hands.

1. The defendant makes the point that the complaint alleged that the money came into his possession as agent, while the proof was that it came into his possession as attorney. The point is without merit. The claims were placed in his hands for collection, and he was none the less Hyatt's agent because he happened to be an attorney at law. There was no material variance between the complaint and the proof. Moreover, no such objection was made on the trial.

2. The only other question is whether the evidence justified the verdict. The evidence was ample that the money belonged to Hyatt, that it came into defendant's possession as Hyatt's agent, and that he appropriated it to his own use without the owner's consent. The evidence was also sufficient to justify the jury in finding that the claim of right or title under which defendant assumed to appropriate it to his own use was...