State v. Farrington

• Decision Date: 16 November 1894
• Docket Number: No. 8976.,8976.
• Parties: STATE OF MINNESOTA <I>vs.</I> FRED W. FARRINGTON.
• Court: Minnesota Supreme Court

Page 147

59 Minn. 147

STATE OF MINNESOTA vs. FRED W. FARRINGTON.

No. 8976.

Supreme Court of Minnesota.

Argued November 9, 1894.

Reveresd November 16, 1894.

The defendant, Fred W. Farrington, was indicted April 5, 1894, in the District Court of Hennepin County for the crime of grand larceny in the first degree. He entered into a contract January 27, 1892, with S. R. Wilson of Chicago, Ill., to collect the rents of the Hotel Brunswick property in Minneapolis and of the adjoining building on Hennepin avenue and apply them to pay insurance, taxes, ground rent, repairs, interest on $30,000 mortgage, and his own compensation of $50 per month. The residue, if any, was to be paid to Wilson or his assigns. Wilson afterwards assigned his right to this surplus and the right to it became vested in Emil Firth. The mortgage was also purchased by Firth and he became entitled to the interest payable thereon. The indictment alleged that on March 4, 1894, Farrington had in his possession by virtue of this contract $5,720 collected thereunder which sum he feloniously withheld from the true owner thereof and appropriated to his own use with intent to deprive Firth thereof. Being arraigned defendant demurred to the indictment. The court, Robert D. Russell, J., disallowed the demurrer and on request of defendant reported the case so far as was necessary to present the questions involved and certified the report to this court.

Fred C. Cook, and Henry C. Belden, for the accused.

COPYRIGHT MATERIAL OMITTED

H. W. Childs, Attorney General, Geo. B. Edgerton, his assistant, Frank M. Nye, County Attorney, and James A. Peterson, his assistant, for the state.

MITCHELL, J.

The defendant, having been indicted for the crime of grand larceny under Penal Code, § 428, demurred to the indictment, specifying numerous objections, all of which may be included in the general objection that the facts stated do not constitute a public offense.

The trial court, having overruled the demurrer, certified to this court, under 1878 G. S. ch. 117, § 11, five questions, which may also be all summed up in one, viz. whether the facts stated in the indictment constitute a public offense. Trespass is an element in every larceny at common law. The effect of this statute making conversion or embezzlement by a trustee, etc., larceny, is merely to do away with the necessity of a trespass. It does not change the rules of pleading. The mere common-law form of indictment for larceny would not be sufficient. In an indictment under this statute the allegations must be special, and must state all the facts necessary to constitute the offense. State v. Henn, 39 Minn. 464, (40 N. W. 564:) State v. Vorey, 41 Minn. 134, (43 N. W. 324;) State v. Friend, 47 Minn. 449, (50 N. W. 692.)

The essential facts necessary to constitute larceny under this section are: First,...