State v. Disbrow

• Decision Date: 06 March 1906
• Citation: 130 Iowa 19,106 N.W. 263
• Parties: STATE v. DISBROW.
• Court: Iowa Supreme Court

130 Iowa 19

106 N.W. 263

STATE

v.DISBROW.

Supreme Court of Iowa.

March 6, 1906.

Appeal from District Court, Van Buren County; F. W. Eichelberger, Judge.

The defendant, having been convicted of the crime of larceny by embezzlement, appeals.Reversed.Mitchell & Hunter, for appellant.

C. W. Mullan, Atty. Gen., and L.De Graff, Asst. Atty. Gen., for the State.

WEAVER, J.

The indictment which was presented by the grand jury January 19, 1905, charges that defendant on October 16, 1896, being the guardian of one B. F. Smith, received into his possession by virtue of said trust the sum of $723.78, and afterward, on the 23d day of February, 1904, did embezzle and unlawfully and feloniously convert to his own use the said sum of money so received.Upon this indictment the defendant was found guilty and sentenced a term of imprisonment in the penitentiary.

1.A motion to set aside the indictment on account of alleged irregularity in impaneling the grand jury was denied, and upon this ruling error is assigned.A motion in arrest of judgment on the same ground was also overruled.It appears that an indictment upon the same charge had been returned against the defendant at a prior term of court, and that upon objection raised thereto at the January, 1905, term it was set aside.At the time this ruling was made the grand jury impaneled for the term had already been discharged, and the court, instead of continuing the case until the next term or recalling the same grand jury, which had recently been discharged, ordered all the grand jurors who had been drawn for service in that county for the current year to be summoned to appear forthwith, and when they had assembled a new grand jury was drawn and impaneled from their number and the charge against the appellant submitted to their consideration.The point made is that, if the court wished to have the appellant's case immediately considered, it should have recalled the grand jury which had been selected and impaneled at the beginning of the term, notwithstanding their discharge and the return of the members to their several homes, and that the drawing of a new panel was without the authority of law.The statute(Code, § 5240) provides that the grand jurors of a county shall appear on the second day of each term of court, and from their number the proper number shall be drawn, who shall constitute the grand jury for that term.While this is true, and the court may not arbitrarily discharge one grand jury and summon another, it does not follow that when one grand jury has been regularly and properly discharged, and an exigency arises later in the term for further service of that nature, the court may not call in the entire body of members and impanel a new jury, instead of recalling the discharged panel.The point made is a technical one.The appellant expressly states that he makes no objection to any individual juror, and there is no suggestion that he has in fact suffered or could suffer any prejudice by reason of the ruling of which he complains.Under somewhat similar circumstances this court has held that the impaneling of a new grand jury is not error.State v. Hughes, 58 Iowa 165, 11 N. W. 706;State v. Hart, 67 Iowa, 142, 25 N. W. 99.See, also, as bearing on the question, Findley v. People, 1 Mich. 234;Stone v. People, 3 Ill. 326;State v. Champeau, 52 Vt. 313, 36 Am. Rep. 754;Bird v. State, 14 Ga. 43;State v. Wilcox, 104 N. C. 847, 10 S. E. 453;State v. King, 9 Mont. 445, 24 Pac. 265;State v. Meyers, 51 Ind. 145;State v. Peterson, 61 Minn. 73, 63 N. W. 171, 28 L. R. A. 324;State v. Harris, 73 Mo. 287;Chartz v. Territory(Ariz.)32 Pac. 166;Freel v. State, 21 Ark. 212;Mackey v. People, 2 Colo. 13.The law relating to the drawing and selecting of grand jurors need not be followed with technical or literal strictness.A substantial compliance is all that is required.SeeState v. Ansaleme, 15 Iowa, 44;State v. Edgerton, 100 Iowa, 65, 69 N. W. 280, and cases there cited.We think that neither course, the recalling of the panel which had been discharged or the drawing of a new panel from the entire venire for the current year, can be considered a substantial departure from the forms provided by the statute, and there can be no presumption of prejudice arising from the adoption of either by the trial court.There appears to be no statute provision expressly authorizing the recalling or reorganizing of a grand jury for the consideration of matters arising after the panel organized at the beginning of the term has been regularly discharged, but we think it cannot be doubted that such authority may fairly be implied from the general provisions, if, indeed, it be not within the common-law powers of the court.Stone v. People, 3 Ill. 326.When an exigency calling for the exercise of this power has arisen, and the court, finding that the panel originally organized for the term has been duly discharged and its members dispersed to their several homes, we are disposed to hold, as already intimated, an order calling for the appearance of the entire membership, and the drawing therefrom of the requisite number of duly qualified persons to whom the matter in hand shall be submitted, is a substantial compliance with the law, and that a motion to set aside the indictment so returned, or in arrest of judgment upon a verdict of guilty thereunder, will not lie.

2.The evidence tends to show that at the time of his appointment as guardian, the appellant received on account of his ward the sum of $879.29, and on January 26, 1901, made a report to the court charging himself with the amount of a loan to one Irish and interest thereon to the amount of $1,054.On March 4, 1903, he again reported charging himself with the balance of $1,054 shown by his last report, with an item of interest bringing the total charge up to $1,117.24, against which he claimed credits for various items reducing the balance due his ward to $723.78.On February 7, 1904, appellant was, by order of court, removed as guardian and a successor appointed with whom he was ordered to make settlement and accounting of his trust.This order he has failed to comply with, and has neither paid nor accounted for the moneys so placed in his hands.It is argued by counsel in his behalf that he cannot be convicted under the record made, because the indictment charges the embezzlement of money while the proof shows that if any embezzlement was committed it was of promissory notes.Let us first look to the facts as disclosed by the evidence.It is not denied that appellant received the trust fund in money, but the record tends to show that $800 of this sum was within a short time loaned to one S. E. Irish.On February 27, 1897, he borrowed from the Iowa National Bank of Ottumwa $400 for his own use, and deposited as collateral thereto the note of Mr. Irish, with other paper owned by the appellant individually.On or about August 28, 1901, Mr. Irish appears to have paid off the appellant's said note of $400 to the bank and received from the bank the collateral deposited with it, including his own note of $800 above mentioned.Thereupon, on August 31, 1901, Irish and appellant had a settlement by which Irish received credit upon the $800 for the $400 which he had paid to the bank for the appellant, leaving a balance of principal and interest still unpaid in the sum of $651.35.This balance was settled by a check given the appellant of $351.35, and a new note signed by Irish and his wife for $300.The amount of the check aforesaid, with $2.65 in cash, making a total of $354, appellant deposited in the bank to his credit as guardian.On the same day he checked out of this account $81.92 in payment of delinquent taxes assessed to him as guardian, and on September 10, 1901, he checked out the balance of $272.08 and used the money in payment of his personal obligations.Concerning the note of Irish and his wife for $300 it appears that appellant, soon after receiving it, put it up as collateral to some of his personal obligations at the bank, and thereafter, on March 6, 1902, sold or discounted it to the bank, and the moneys so obtained were also converted to his own use.As the statute of limitations has an important bearing on this case, we will first turn our attention to the one item against which the bar cannot, under any theory, be held to have arisen.As we have already noted, the indictment herein was returned January 19, 1905, and the date when the note for $300 was discounted and the moneys so received converted by appellant was within less than three years prior thereto.

It is argued that appellant, holding the note in his capacity as guardian, had no right or authority, without the order or direction of the court, to sell or discount the note, and therefore the crime, if any was committed, consisted in its unlawful disposal or conversion, and not in the conversion of the moneys realized thereon.We may concede as the general proposition of counsel that, if the bailee of chattels with authority to sell fraudulently sells the same and converts the proceeds to his own use, he is guilty of embezzlement of the property sold or of its proceeds, according as the fraudulent purpose was formed in his mind before or after the sale was consummated.But not every wrongful conversion, even by a bailee or trustee without legal authority to sell, is an embezzlement.To constitute that crime the conversion must be actuated by the fraudulent purpose to deprive the owner of his property.For instance, if this guardian, having collected $300 on a note held for his ward, and having at the same time a like sum to his own credit in the bank, should without any fraudulent purpose use the trust money in his hands for private purposes, and then go at once to the bank and have the same amount transferred from his personal to his trust account, he would perhaps be chargeable with a technical conversion, but would not be guilty of...