State v. Charles R. Mims.
| Decision Date | 10 October 1879 |
| Citation | 2 N.W. 683,2 N.W. 494,26 Minn. 183 |
| Parties | State of Minnesota v. Charles R. Mims. (1st Case.) |
| Court | Minnesota Supreme Court |
Rehearing Denied 26 Minn. 183 at 190.
The defendant, as late county treasurer of McLeod county, was tried and convicted in the district court for that county before Macdonald, J., on an indictment for embezzlement of state funds. John Thom and C. Johnson, when called as jurors were severally objected to for general disqualification. Thom testified that he was born in Scotland, of Scotch parents and came to this country with them when he was 13 years of age, and then testified that, during his minority, his father was naturalized. Johnson testified that he was born in Norway and had taken out his naturalization papers in McLeod county. In neither case was any other than oral evidence of naturalization produced, and in each case the challenge was found not to be true by the court, and the defendant excepted.
The state introduced evidence tending to show a resignation of the office of treasurer by the defendant, and the appointment of one Sievers as his successor, and that Sievers had ever since acted as treasurer; that after such appointment Sievers requested defendant to turn over to him the moneys in his hands. It appeared that Sievers was born in Germany, and the only proof that he had made declaration of his intention to become a citizen of the United States, was his own testimony to the fact, received under objection and exception by the defendant, after the witness had testified to a diligent search for his naturalization papers, and inability to find them. The other exceptions are stated in the opinion. The defendant appeals from an order refusing a new trial.
Decision and order affirmed.
W. W. Erwin and J. V. V. Lewis, for appellant.
Geo. P. Wilson, Attorney General, for the State.
Indictment for embezzlement of money belonging to the state, exceeding in amount the sum of $ 100. The indictment alleges specifically that the defendant was county treasurer of McLeod county from February, 1876, to and including August 24, 1877; that between the first day of March, 1877, and the fifteenth day of June, 1877, both days inclusive, he, as such county treasurer, collected and received from divers persons, for the permanent school fund, for the general school fund, and for the general university fund of the state, divers sums of money, therein particularly stated, amounting in the aggregate to $ 4,706.44, and that he afterwards, to wit, on the twenty-fourth day of August, 1877, unlawfully and feloniously embezzled and converted the same, and the whole thereof, to his own use, contrary to the form of the statute, etc. The indictment is well and carefully drawn, and no valid objection can be urged against it.
In impanelling the jury, the court, with the consent of both parties, acted in the place of triers, and whatever effect the law accords to the decisions of the latter, upon questions properly submitted to them, must also be given to those of the former, while acting in their stead. Its determination, therefore, of the challenge for actual bias, which was interposed to the juror Danick, was a finality, and cannot be reviewed in this court, even though brought before us upon an exception properly taken. Gen. St. c. 116, § 31.
Upon the evidence, the juror Thom became a citizen by virtue of the naturalization of his father, he being under the age of twenty-one years at the time. 2 Kent, (12th ed.) 512. The ruling of the court in admitting that evidence was not excepted to, and its correctness is not, therefore, before us. In respect to the trial of the challenge of Johnson for general disqualification, the evidence was received without objection, and upon the facts proved the challenge was correctly overruled.
To maintain the indictment it was material for the state to prove the collection and receipt of the moneys charged to have been taken, by the defendant as county treasurer of McLeod county, and their subsequent embezzlement by him, while holding them in that capacity. It is not questioned that the defendant held such office, and exercised all its functions, during the time when the moneys are alleged to have been received, and misappropriated or embezzled. Whether, before receiving them, he gave to the state the bond required by Gen. St. c. 38, § 39, as it was his duty to have done, is unimportant as respects the question of his criminal liability for their wrongful conversion. If he assumed the right of making the collections as county treasurer, it does not lie with him, when called upon to account therefor to the state, to object that he had no legal right so to do, because he had omitted to give the prerequisite security against loss which the law required of him solely for the protection of the state. Proof that he executed such bond was, therefore, unnecessary on the part of the prosecution.
As evidence that the defendant, as county treasurer, collected and received the identical moneys charged in the indictment and was justly liable therefor to the state, on the fifteenth day of June, 1877, the prosecution was allowed -- after showing a settlement then had between him, as such treasurer, and the county auditor, as required by law, in respect to all moneys theretofore received by him subsequent to the date of his last preceding settlement, on account of principal, interest and penalties arising from former sales of school, university and internal-improvement lands -- to introduce the then county auditor's official certificate of such settlement and collections so made, together with the defendant's official written endorsement, made thereon at the time, acknowledging its correctness. This was clearly competent evidence, as an admission by defendant of the truth of the facts recited in the certificate. Like admissions generally, it was, of course, not...
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