State v. Duerksen

• Decision Date: 01 February 1913
• Citation: 129 P. 881,8 Okla.Crim. 601,1913 OK CR 33
• Parties: STATE v. DUERKSEN.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

129 P. 881

8 Okla.Crim. 601, 1913 OK CR 33

STATE v. DUERKSEN.

Court of Criminal Appeals of Oklahoma

February 1, 1913

Syllabus by the Court.

When there is proof in the record tending reasonably to sustain the allegations of the information, a trial court has no right to advise the jury to return a verdict of not guilty and especially is this true when there has been no testimony offered on the part of the accused.

When a person, occupying the relation of agent to principal, comes into possession of funds belonging to the principal, and converts the same to his own use, without the knowledge or consent of the principal, the law implies the fraudulent intent contemplated by the statute; and section 2612, Comp Laws 1909, specifically provides that the fact that the accused intended to restore the property embezzled is no grounds for defense or of mitigation of punishment, unless restored before complaint or information is filed.

Appeal from District Court, Major County; James B. Cullison, Judge.

Peter F. Duerksen was indicted for embezzlement, and on acquittal the State appeals on question reserved. Contention of State sustained.

Smith C. Matson, Asst. Atty. Gen., and Abijah Fairchild, Co. Atty of Fairview, for the State.

John V Roberts, of Fairview, and Garber & Kruse, of Enid, for defendant in error.

ARMSTRONG P.J.

This is an appeal by the state on a question reserved, growing out of a judgment of acquittal entered in the district court of Major county by direction of the trial court, in a case wherein the state of Oklahoma prosecuted Peter F. Duerksen on a charge of embezzlement.

The charging part of the information, upon which the prosecution was based, is as follows: "That the said Peter F. Duerksen, in said county and state, on or about the 29th day of August, 1910, was the agent of Hiram S. Aumiller for the purpose of renting and receiving the rents therefor on the following tract of land then and there owned and possessed by the said Hiram Aumiller, to wit, the S. 1/2 of the N.W. 1/4 of section 3, in township 30 north, of range 12 west, I. M.; and being agent as aforesaid, by virtue of his said employment as such agent, there came into the care and control of him (the said Peter F. Duerksen), for and on account of the said Hiram S. Aumiller, as rents from one Philip Wagner, on or about the said 29th day of August, 1910, the sum of $80.50; and the said Peter F. Duerksen, aforesaid, so received and took into his control and care the said money for and on account of the said Hiram S. Aumiller, and afterwards, to wit, on or about the 3d day of September, 1910, at and in said county and state, the said Peter F. Duerksen did willfully, unlawfully, feloniously, and fraudulently embezzle, convert, and appropriate the same to his own use, and not in the due and lawful execution of the said trust of his (the said Peter F. Duerksen), contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state."

The statute upon which this prosecution was founded is as follows: "Embezzlement is the fraudulent appropriation of property by a person to whom it has been intrusted." Section 2609, Comp. Laws 1909. "If any person being a trustee, banker, merchant, broker, attorney, agent, assignee in trust, executor, administrator or collector, or being otherwise intrusted with or having in his control property for the use of any other person, or for any public or benevolent purpose, fraudulently appropriates it to any use or purpose not in the due and lawful execution of his trust, or secrets it with a fraudulent intent to appropriate it to such use or purpose, he is guilty of embezzlement." Section 2612, Comp. Laws 1909. "The fact that the accused intended to restore the property embezzled is no ground of defense, or of mitigation of punishment, if it has not been restored before an information has been laid before a magistrate, charging the commission of the offense." Section 2618, Comp. Laws 1909.

The material facts upon which the state relied for conviction, as disclosed by the proof introduced at the trial, are substantially as follows: The prosecuting witness, Hiram S Aumiller, was a resident of the state...