State v. O'Connor

• Decision Date: 17 August 1929
• Citation: 226 N.W. 601,58 N.D. 554
• Court: North Dakota Supreme Court

226 N.W. 601

58 N.D. 554

STATE OF NORTH DAKOTA, Respondent, v. W. V. O'CONNOR, Appellant

Supreme Court of North Dakota

August 17, 1929

Appeal from the District Court of Grand Forks County Englert, J. Defendant was convicted of the crime of embezzlement and appeals from the conviction.

Reversed.

Divet Shure, Murphy & Thorp, for appellant.

The indictment must describe the property charged to have been stolen with sufficient particularity to enable the court to determine that such property is the subject of larceny. It must also inform the defendant of the nature of the accusation he will be called upon to meet and enable him to plead. 36 C.J. 813, § 268.

So long as the certificates of deposit remained in the possession of the defendant and were not delivered to the payee therein named, nor fraudulently endorsed and cashed by the defendant there could be no conversion. State v. Mispagel (Mo.) 106 S.W. 513; State v. Wilcox, 179 S.W. 482.

Comment on evidence by court contrary to the provision of §§ 10,822 and 10,863, Comp. Laws 1913, is prejudicial. Territory v. O'Hare, 1 N.D. 30, 44 N.W. 1003; State v. Barry, 11 N.D. 428, 92 N.W. 809; State v. Peltier, 21 N.D. 189, 129 N.W. 451.

Any law of the state, whether of procedure or not, passed after the commission of an offense, which alters the situation of the party to his disadvantage, is an ex post facto law within the meaning of § 10, article 1, of the Constitution of the United States. Calder v. Bull, 3 Dall. 386; United States v. Hall, 2 Wash. (C.C.) 366; Kring v. Missouri, 107 U.S. 221, 27 L. ed. 566; Re Nedley, 134 U.S. 160, 33 L. ed. 835; Thompson v. Utah, 170 U.S. 343, 42 L. ed. 1061.

James Morris, Attorney General, William C. Green, Special Assistant Attorney General, and J. B. Wineman, State's Attorney, for respondent.

"The crime of embezzlement, as known under the codes of North Dakota, is not the common law offense of larceny. It is not necessary that the specific property appropriated should be identified." State v. Bickford, 28 N.D. 36, 147 N.W. 407.

"The court, as a rule, cannot discharge its duty of declaring the law of the case without stating or in some way referring to the testimony." State v. Barry, 11 N.D. 428, 92 N.W. 809.

"Where the law relates to matters of procedure merely and does not deprive the accused of any substantial protection, it is not ex post facto." 12 C.J. 1103.

"It has been held that a general statute giving the government more challenges than it had at the time of the commission of a particular offense was constitutional." Gibson v. Mississippi, 162 U.S. 565, 40 L. ed. 1075.

Christianson, J. Burke, Ch. J., and Birdzell, Nuessle, and Burr, JJ., concur.

OPINION

CHRISTIANSON

The defendant was convicted of the crime of embezzlement and appeals from the judgment of conviction. The indictment charges: "That W. V. O'Connor did, in the county of Grand Forks, state of North Dakota, on the 25th day of August, A.D. 1923, commit the crime of embezzlement, committed as follows, to wit: --

"That on the said 25th day of August, A.D. 1923, the First Savings Bank was, and for a long time prior thereto had been a state savings bank association, duly organized and existing as a corporation under and by virtue of the laws of the state of North Dakota, and engaged in the banking business at the city of Grand Forks, county of Grand Forks, state of North Dakota, and that on said day and during all of said time the defendant, W. V. O'Connor, was an officer of the said First Savings Bank, to wit: a Director and Treasurer thereof; that on the said 25th day of August, A.D. 1923, the said W. V. O'Connor being then and there such Director and Treasurer of the said First Savings Bank of Grand Forks, North Dakota, as aforesaid, did in and by virtue of his said office, trust and employment, receive and take into his possession and have under his control $ 4,731.45 in property, consisting of money, bank notes, and other funds, a more particular description of which is to the grand jury unknown, all then and there the property of and belonging to the said First Savings Bank of Grand Forks, North Dakota, for and in the name and on the account of the said First Savings Bank of Grand Forks, North Dakota, worth and of the value then and there of the sum of $ 4,731.45; that afterwards, to wit: on the 25th day of August, A.D. 1923, the said W. V. O'Connor did then and there wilfully, knowingly, fraudulently and feloniously embezzle and convert the same to his own use, and did then and there, wilfully, knowingly, fraudulently and feloniously appropriate the same to a use and purpose not in the due and lawful execution of his trust; this contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of North Dakota."

On being arraigned the defendant demurred to the indictment on the grounds, among others (1) That it does not state facts sufficient to constitute a public offense; and (2) That it does not substantially conform to the requirements of the Code of Criminal Procedure. The demurrer was overruled; thereupon the defendant entered a plea of not guilty and the issue thus framed was submitted to a jury which returned the following verdict: "We, the jury, empanelled and sworn to try the above entitled action, do find the defendant guilty and recommend leniency."

The defendant moved for a new trial and in arrest of judgment; both motions were denied and he was sentenced pursuant to the verdict.

1. The first contention advanced by the appellant is that the demurrer to the indictment, and the motion in arrest of judgment were well founded and that the trial court erred in overruling the demurrer and in denying the motion in arrest of judgment. The specific attack on the indictment is leveled at the description of the property charged to have been embezzled. It is asserted that the description of the property is so vague, uncertain and indefinite as to invalidate the indictment. In appellant's brief it is said: "The essence of this objection (the objection raised by the demurrer and the motion in arrest of judgment) is that the term 'fund' or 'other funds' as therein used is too general or indefinite as a description of the property said to be embezzled and its inclusion invalidates the entire indictment."

Our statutes (Comp. Laws 1913) provide:

"Sec. 9931. If any person, being an officer, director, trustee, clerk, servant or agent of any association, society or corporation, public or private, fraudulently appropriates to any use or purpose not in the due and lawful execution of its trust, any property which he has in his possession or under its control in virtue of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, he is guilty of embezzlement."

"Sec. 9936. A distinct act of taking is not necessary to constitute embezzlement, but any fraudulent appropriation, conversion or use of property coming within the above prohibitions is sufficient."

"Sec. 10,685. The information or indictment must contain: 1. The title of the action, specifying the name of the court to which the information or the indictment is presented, and the names of the parties. 2. A statement of the acts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended."

"Sec. 10,693. The information or indictment is sufficient if it can be understood therefrom: . . . 6. That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.

"7. That the act or omission charged as the offense, is stated with such a degree of certainty as to enable the court to pronounce judgment upon a conviction, according to the right of the case."

"Sec. 10,701. In an information or indictment for larceny or embezzlement of money, bank notes, certificates of stock or valuable securities, or for a conspiracy to cheat and defraud a person of any such property, it is sufficient to allege the larceny or embezzlement, or the conspiracy to cheat and defraud, to be of money, bank notes, certificates of stock or valuable securities, without specifying the coin, number, denomination or kind thereof."

The indictment in this case did not follow the language of the statute in describing the property charged to have been embezzled. Instead of charging the embezzlement of "money, bank notes and valuable securities" it charged the embezzlement of "money, bank notes and other funds." The term "funds" has a variety of meanings. The sense in which it is employed in a statute or in a pleading must be gathered from the context. (27 C.J. pp 926, 927. See also People v. McKinney, 10 Mich. 54.) It is not a legal term with a settled meaning; but is a term in common use, especially as regards public officers (People v. McKinney, 10 Mich. 55, 90) and banking institutions. As so used it is generally understood as meaning the quick capital or available assets of the bank. Funk & W. New Standard Dict. When used alone, that is, when reference is made generally to the "funds" of a bank it doubtless includes money and bank notes; but when used in connection with these terms it must be deemed to refer to assets other than moneys or bank notes. When used in this manner it is synonymous with quick assets of the bank, other than money or bank notes, and has reference to and includes cash items, and valuable securities such as government, state, county, or municipal bonds or obligations and other forms of obligations and securities in which investment of a bank's funds may be made. ...