State v. Glaze

• Decision Date: 23 September 1916
• Docket Number: No. 30672.,30672.
• Citation: 177 Iowa 457,159 N.W. 260
• Parties: STATE v. GLAZE.
• Court: Iowa Supreme Court

177 Iowa 457

159 N.W. 260

STATE

v.GLAZE.

No. 30672.

Supreme Court of Iowa.

Sept. 23, 1916.

Appeal from District Court, Clarke County; H. K. Evans, Judge.

Conviction for embezzlement. Defendant appeals. Reversed and remanded.O. M. Slaymaker, of Osceola, for appellant.

Geo. Cosson, Atty. Gen., and M. L. Temple, Co. Atty., of Osceola, for the State.

SALINGER, J.

[1][2][3] I. The court charged in instruction 14 that to entitle the state to a conviction it must, among other things, prove beyond a reasonable doubt that defendant committed actual conversion and embezzlement of moneys, checks, or drafts of the railroad company as charged in the indictment. But it adds:

“Or, if the state has failed in this, then, in order to justify a conviction, the state must prove beyond a reasonable doubt the shortage in the defendant's accounts, and that the Chicago, Burlington & Quincy Railroad Company made demand on defendant for the sum of money charged in the indictment to have been embezzled, and that the defendant neglected or refused to account and pay over the same, or a sufficient amount to cover the amount of shortage actually existing, but not of a greater sum than was demanded by the said Chicago, Burlington & Quincy Railroad Company.”

It is unquestionable that this wholly omits fraudulent intent, which, of course, the state concedes to be an essential. It is entirely possible that one is not actuated by fraudulent intent, even though his employer makes a demand for money, and there be a neglect or refusal to account for same or pay it over. The avoidance by the state is that other instructions told the jury that a fraudulent intent was essential to conviction. The defendant responds that this does not cure the error in the instruction given, and presents, at best for the state, reversible error on account of giving conflicting instructions. The objection cannot be concluded by invoking the rule that the instructions must be taken together. Assume that the charge, taken as a whole, except instruction 14, correctly enumerates what is essential to conviction. That does not justify an alternative instruction which affirmatively permits the jury to return a verdict of guilty, though an essential element be not proven. That is just what the instruction complained of does. The jury had been instructed as to what it must find to justify a conviction. It was then told that, if it could not find those things, it might still convict if some other things were found. This last enumeration omitted one essential. Its giving was error. For all we can know, the verdict may rest on a finding that defendant was short, and, on demand, refused or neglected to pay. It may, to be sure, rest on the elements outlined by other instructions, but who is to say it does.

We must reverse where, for all we know, the jury may have adopted the erroneous instead of the correct rule. State v. Hartzell, 58 Iowa, 520, 12 N. W. 557;Kerr v. Topping, 109 Iowa, 150, 80 N. W. 321. Where there was a lengthy instruction in one part of which there was error in stating the right to kill in repelling an assault, we reversed, though in another part the correct rule is stated, because it cannot be known which rule the jury followed. State v. Keasling, 74 Iowa, 529, 38 N. W. 397. See State v. West, 45 La. Ann. 14, 12 South. 7. In State v. Menilla, 158 N. W. 645, we reverse because, while it is correctly charged that one may take life in defense of another if it seem to him in reason necessary, it is also charged that the belief of the one defended is to be considered. When one instruction lays down a rule in unequivocal language, and another a different or contrary rule, there must be a reversal. Mester v. Zaiser, 143 Iowa, 623, 120 N. W. 466;McDivitt v. Railway, 141 Iowa, 689, 118 N. W. 459;Platt v. City, 136 Iowa, 221, 113 N. W. 831;Hawes v. Railway, 64 Iowa, 315, 20 N. W. 717.

[4][5] II. In instruction 3 the jury was told that, if the state had proven eight specified essentials beyond a reasonable doubt, it should find defendant guilty. Appellant asserts that these eight alone were not sufficient, and that there were other essentials which are not enumerated in the instruction. It is further urged that it conflicts with instruction No. 12. If this enumeration does not embrace all that should have been proven, appellant may not complain. The instruction given is a substantial copy of instruction 2 offered by defendant. The only difference is this: The one given says that before convicting the state must prove the eight things beyond a reasonable doubt. It closes with the statement that, if the eight things have been so proven, there should be a conviction, but if there is a failure to prove any one of them there should be acquittal. The one asked by defendant starts out by saying, “You are instructed that before you can convict defendant the state must show by proof convincing beyond a reasonable doubt all of the following essentials,” and it closes with the statement, “That, if the state has failed to prove any one of such essentials by evidence which satisfies you beyond a reasonable doubt, you must acquit defendant.” It seems to us this speaks in terms of exclusion, and may fairly be construed to be a request to charge that proof of these eight essentials would justify a conviction--just what the instruction given does.

It is said, too, that the instruction conflicts with No. 12. This last instruction may, for the purposes of argument, be assumed to require more than those eight essentials, and in that view to be in conflict with No. 3. But, since appellant had asked the trial court to charge that the proof of eight things would justify a conviction, it is in no position to complain that the court on its own motion made the burden of conviction greater than appellant conceded it to be. The conflict in this case is an error consisting of giving defendant more than he asked.

[6] III. The indictment alleges that defendant had embezzled the sum of $339.92. The court charged this sum was made up of three specified checks for $133, $86.24, and $120.68, respectively. The effect of instruction 15, complained of, is that, if the defendant collected the $339.92, as charged in the indictment, and failed to place that sum collected on the books, and fraudulently concealed that he had collected it, he would be guilty of embezzling the $339.92, and appropriating the same to his own use feloniously, although he had remitted that very money to his employer, if he remitted it to be applied in payment of moneys wrongfully appropriated earlier. In Secor v. State, 118 Wis. 621, 95 N. W. 942, the evidence tended to show that monthly balances were taken, and that the shortage was concealed by the defendant by a system of throwing forward receipts which came in at the end of the month into the next month's account, and entering expenses paid during the early days of the month among expenses of the previous month. The case holds that making false trial balances, borrowing money to pay a shortage in accounts lost by speculation, and other things mentioned are incriminating circumstances, and tend to furnish proof of the body of the crime. This does not go to the extent of holding that these, of themselves, will justify a conviction. In effect, the one here did go that far. But we think it did not err. To collect a stated sum which is the property of an employer, to conceal that fact, and to account for it as money due the employer for something else that has been collected for him appropriates and embezzles the money so used. It conceals fraudulently that the sum had been collected for the items for which it was paid to the cashier. While the employer got the $339.92, the employé none the less converted it. The case is not essentially different from what it would be if a servant collected $300 for wheat which the employer intrusted him to sell and remit for, and the servant had the check for the wheat sold made payable to himself and forwarded it to pay for a home he had bought of the employer, concealing that the remittance was the proceeds of the master's grain.

[7][8] IV. The indictment charges that between the 1st of November, 1913, and the 1st day of February, 1914, defendant was continuously in the employ of the railway company as its cashier at Osceola, Iowa, and that between said dates defendant embezzled the money of the company in the aggregate sum of $339.92. A number of exhibits dated earlier than November 1, 1913, consisting of freight bills, receipts, and the like, and which, it may be assumed, tend to show embezzlements, were admitted over apt objection. The court declined to limit the effect of these exhibits to intent or motive, and, on the contrary, charged the jury that it should consider “all the acts, statements and conduct of the defendant in reference to the books, waybills, checks, or drafts and freight bills and receipts, together with all the other evidence.” Appellant says it was not only error to receive these exhibits without limiting them to intent or motive, but that said instruction aggravated the error.

The state plants itself upon the following provision of section 4842:

“If money or property is so embezzled or converted by a series of acts during the same employment, the total amount of the money and the total value of the property so embezzled or converted shall be considered as embezzled or converted in one act, and he shall be punished accordingly.”

Under this statute, and section 5302, the indictment is sufficient if it alleges the embezzlement of money generally, without designating its particular species, and the proof is sufficient if it shows defendant embezzled any money, although the particular species be not proved; and a series of embezzlements may be treated as one act of embezzlement. But is that controlling? The question we have here is this: When the state sees fit not to avail itself of these statute privileges...