State v. Folger

• Decision Date: 26 October 1926
• Docket Number: 37764
• Citation: 210 N.W. 580,204 Iowa 1296
• Parties: STATE OF IOWA, Appellee, v. J. C. FOLGER, Appellant
• Court: Iowa Supreme Court

210 N.W. 580

204 Iowa 1296

STATE OF IOWA, Appellee, v. J. C. FOLGER, Appellant

No. 37764

Supreme Court of Iowa, Des Moines

October 26, 1926

REHEARING DENIED DECEMBER 17, 1927.

Appeal from Sioux District Court.--C. C. BRADLEY, Judge.

The defendant was convicted of the crime of embezzlement, and sentenced to the penitentiary at Fort Madison for an indeterminate term of five years. From this judgment he appeals.

Affirmed.

C. W Pitts and Van Oosterhout & Kolyn, for appellant.

Ben J Gibson, Attorney-general, Neill Garrett, Assistant Attorney-general, Charles B. Hoeven, County Attorney, and T. E. Diamond, for appellee.

STEVENS, J. DE GRAFF, C. J., and FAVILLE and VERMILION, JJ., concur.

OPINION

STEVENS, J.

I.

The indictment in this case charges the defendant with the commission of the crime of larceny by the embezzlement of 2,791 bushels of oats, the property of one Martin Boever, of the value of $ 781.48, committed on or about April or May, 1922. This indictment was returned by the grand jury of Sioux County March 26, 1925. A former indictment charging the defendant with the crime of larceny by the embezzlement of $ 7,842.80, as agent and bailee of the said Boever, committed about June, 1923, was returned against him January 13, 1925. Both indictments grow out of the same original transaction, but are not based upon the same specific act.

At the conclusion of the testimony upon the first trial, the jury, by peremptory direction of the court, returned a verdict of "not guilty." The acquittal of the offense charged in that indictment is pleaded as a bar to the prosecution upon the present indictment. It was the claim of the State, upon the trial of the first indictment, that, in April and May, 1922, Martin Boever delivered 2,791 bushels of oats to the defendant, who then owned an elevator, and was engaged in the grain business at Alton, Iowa, in Sioux County, in pursuance of an oral contract for the storage thereof; that, in June, 1923, Boever authorized and directed the defendant to sell the oats at an agreed price, and to ship the same to market; and that, although repeated demand was made therefor, the defendant did not pay the proceeds of the sale to Boever, but continually put him off, by saying that he had not yet received the returns from the shipment, and that, when he did, he would pay him the amount due. $ 500 was subsequently paid by the defendant to Boever, which he credited upon the purchase price of a large quantity of corn sold and delivered to the defendant at or about the same time as the oats. The facts developed upon the trial of the first indictment showed that the oats had in fact been sold by the defendant in September, 1922, and shortly thereafter shipped with other grain to Council Bluffs, and the proceeds received therefrom used by the defendant in his business. The claim of the defendant upon the trial of the first indictment, which is also urged in this case, was that the oats were delivered to, and received by, the defendant from Boever, and placed in the elevator with other grain, without any contract or arrangement for storage, and in pursuance of a trade custom or usage prevailing in that community, and well known and understood by the parties, that the defendant had the right to sell the grain at any time he wanted to, and to settle with Boever on the basis of the weights, for which he held scale tickets, and of the market price at the time of settlement. It was, and is, also argued by the defendant that the transaction was, in legal effect, a sale, and not a bailment.

The two indictments are based upon different sections of the Code. The first indictment was based upon Section 13031 of the Code of 1924, which provides that:

"If any * * * agent * * * of any private person * * * except persons under the age of sixteen years, * * * in any manner receives or collects money or other property for the use of and belonging to another, embezzles or fraudulently converts to his own use, or takes and secretes with intent to embezzle or convert to his own use, without the consent of * * * the owner of the money or property collected or received, * * * is guilty of larceny."

The present indictment is based upon Section 13030 of the Code of 1924, which provides that:

"Whoever embezzles or fraudulently converts to his own use, or secretes with intent to embezzle or fraudulently convert to his own use, * * * goods, or property delivered to him * * * which may be the subject of larceny, shall be guilty of larceny and punished accordingly."

The offenses defined by these sections of the Code are wholly separate and distinct, and neither is included in the other. It will be noted that the first indictment charged the defendant with the larceny of money in his capacity as "agent and bailee." During the trial the defendant moved the court to require the State to elect whether it would prosecute the defendant as bailee or as agent. Without any ruling by the court, the State elected to prosecute the defendant upon the offense defined by Section 13031. It was conceded by all parties upon both trials that whatever money, if any, the defendant fraudulently converted to his own use was the proceeds of the sale of the oats, together with the proceeds of the sale of a quantity of corn previously delivered to him by Boever. Except for the use of the word "bailee" in the indictment, coupled with the word "agent," as above stated, there is nothing therein constituting a charge of the embezzlement of anything but money. The allegations of the indictment were wholly insufficient to charge the larceny of the oats by embezzlement. The conviction of the defendant of the offense charged in that indictment was sought by the State upon the theory that, when Boever authorized and directed him in June to sell and ship the oats at an agreed price and account for the proceeds, the relation of principal and agent was thereby created, and that whatever the defendant thereafter did was in his capacity as agent. When, however, it was conclusively shown upon the trial that the oats had been sold and delivered to the purchaser by the defendant long prior to June, 1923, and the proceeds of such sale received and appropriated by the defendant and used in the conduct of his business, there was nothing that could have been done under the supposed agency. No grain was sold, or money received or converted by the defendant, as the agent of Boever. Therefore, at the conclusion of the trial, the defendant moved for a directed verdict, which motion the court sustained, upon the ground that the evidence was insufficient, for the reasons indicated, to convict the defendant of the crime charged in the indictment.

The evidence was substantially the same upon the trial of both cases. This, however, is not the test for determining whether a former acquittal of the offense charged in another indictment is a bar to the prosecution of another separate and distinct offense. The test recognized by the authorities generally is whether or not, if the allegations of the second indictment had been proved under the first, there could have been a conviction; or, as stated by Bishop in his work on Criminal Law, Section 1052, Paragraph 2:

"The test is whether, if what is set out in the second indictment had been proved under the first, there could have been a conviction. When there could, the second cannot be maintained; when there could not, it can be."

See, also, State v. Ingalls, 98 Iowa 728, 68 N.W. 445; State v. Price, 127 Iowa 301, 103 N.W. 195; State v. McAninch, 172 Iowa 96, 154 N.W. 399; State v. Broderick, 191 Iowa 717, 183 N.W. 310. In the absence of statute, it is not necessary, in order to sustain a plea of former acquittal, that it be shown that the offenses charged in the separate indictments are the same. State v. Price, supra.

With the foregoing test in mind, can it be said that the evidence offered upon the first trial, which resulted in the acquittal of the defendant, necessarily works the same result in the present instance? The gist of the offense charged in the first indictment was the conversion or embezzlement of money by the defendant, which he received as the agent of Boever. The gist of the offense charged in the present indictment is the fraudulent conversion or embezzlement of a quantity of oats which he received from Boever as bailee. Instead of its being possible to prove both offenses by the same evidence proof of the offense charged in the first indictment would negative guilt under the second. In other words, proof of agency was indispensable upon the trial of the first indictment, and proof of another element of the transaction that is a bailment was indispensable upon the trial of the present indictment. Not only are the offenses separate and distinct, but evidence which will sustain one would justify, if not require, an acquittal of the other. It must, of course, be conceded that, if the defendant could have satisfied the jury, upon either trial, that the original transaction constituted a sale of the oats to the defendant, or gave him implied authority to sell the same whenever he desired, an acquittal would necessarily have followed. The mere fact, however, that the delivery of the grain to ...