State v. Charles R. Mims
| Decision Date | 10 October 1879 |
| Citation | 2 N.W. 492,26 Minn. 191 |
| Parties | State of Minnesota v. Charles R. Mims. (2d Case.) |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for McLeod county, Macdonald, J., presiding, overruling his demurrer to an indictment accusing him "of the crime of embezzlement of money entrusted to him," and charging "that at Glencoe in the county of McLeod, state of Minnesota, on the 18th day of July, A. D. 1877, the said Charles R. Mims was by one Martin Renz entrusted with and had in his possession custody and control, a large sum of money, to wit, the sum of $ 825, for the purpose of sending and delivering the same to one J. E. Bell, in the city of Minneapolis in said state which said money was the property of said Martin Renz, and of the value of $ 825, consisting," etc., "and, while the said Mims had the said money in his possession, custody and control, entrusted to him as aforesaid, did then and there, at the time and place aforesaid, wilfully, maliciously and feloniously embezzle the same and the whole thereof, and convert the same to his own use, by then and there using and disposing of the same to his own use and benefit, contrary to the form of the statute," etc.
The demurrer should have been sustained, and the order overruling it is reversed.
W. W Erwin and J. V. V. Lewis, for appellant.
Geo. P Wilson, Attorney General, for the State.
It is conceded by the attorney-general that this indictment was drawn under Gen. St. c. 95, § 24, and that it cannot be sustained if the principle upon which the case of Com. v. Williams, 3 Gray 461, was decided is to be followed by this court. In that case the defendant was indicted for embezzling bank-bills which he received from the owner to keep for him till the following morning, but which he refused to deliver up, and fraudulently converted to his own use; and the indictment was attempted to be sustained upon a statute identical in terms with the one in question. It was held that it could not be maintained, for the reason that the statute was restricted to the embezzlement of property received by one to be carried and delivered to another. The rule of strict construction which the court adopted in that case is one of universal application in the interpretation of penal statutes, the rigid observance of which by courts is essential to guard against the creation, by judicial construction, of...
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