State v. Hoff

• Citation: 150 N.W. 929,29 N.D. 412
• Parties: STATE v. HOFF.
• Decision Date: 18 January 1915
• Court: United States State Supreme Court of North Dakota

29 N.D. 412

150 N.W. 929

STATE

v.HOFF.

Supreme Court of North Dakota.

Jan. 18, 1915.

Syllabus by the Court.

Information examined, and held sufficient to charge embezzlement by defendant as a bailee.

Though a portion of the instructions, concerning intent, are inaccurate, and, under certain circumstances, might be prejudicial, the specific instructions as to intent cures the error complained of and renders the same nonprejudicial.

Additional Syllabus by Editorial Staff.

That an information used the words “fraudulently appropriate,” instead of the statutory term, “fraudulently convert,” did not render it insufficient to charge embezzlement by a bailee in violation of Comp. Laws 1913, § 9934; the two phrases being practically synonymous, and the term “convert” meaning no more than is signified by the term “appropriate.”

Appeal from District Court, Mountrail County; F. E. Fisk, Judge.

J. C. Hoff was convicted of embezzlement, and appeals. Affirmed.E. R. Sinkler, of Minot, for appellant. F. F. Wyckoff, State's Atty., of Stanley, for the State.

GOSS, J.

Defendant, convicted of embezzlement, appeals.

[1] The first error assigned is based on objection to all testimony on the ground that the information is insufficient to charge embezzlement. The information was not assailed by demurrer. It will be assumed that the question of sufficiency of the information to charge embezzlement is raised under section 10745, C. L. 1913. The information recites that:

Defendant “did commit the crime of embezzlement, committed as follows, to wit: That at said time and place the said J. C. Hoff then and there having in his possession and under his control property of Carl Anderson, to wit, one hundred twenty dollars intrusted to said J. C. Hoff by said Carl Anderson for safekeeping, for the use and benefit of said Carl Anderson, did willfully, fraudulently and feloniously appropriate the same to his own use, a purpose not in the due and lawful execution of his trust, without the consent of said Carl Anderson.”

The information is drawn to charge embezzlement by a fraudulent conversion by a bailee, under section 9934, C. L. 1913. That statute, omitting unnecessary words, reads:

“If any person being intrusted with any property as bailee, * * * fraudulently converts the same or the proceeds thereof to his own use, or secretes it or them with a fraudulent intent to convert to his own use, he is guilty of embezzlement.”

Appellant asserts that the information is insufficient “for the reason that the charging part is in the form of a recital.” This arises from the use of the word “having,” the participle. No citation of authority is needed, as no modern authority supports the objection taken. Bishop's New Criminal Procedure, vol. 2, §§ 504, 556-558, that “the participle or even the adverb will suffice when so employed to satisfy the demand for directness” and “the law which is even indifferent to faults of grammar and verbal inaccuracies does not require for the direct averment any particular part of speech, provided that to the common understanding it is direct.”

Counsel then avers that the information is drawn under both sections 9933 and 9934, relating to different appropriations by persons in different fiduciary capacities, and therefore that the information is duplicitous. This ground cannot be urged on an objection taken to evidence. It can only be taken by demurrer. No demurrer having been interposed, the defect is waived. State v. Climie, 12 N. D. 33, 94 N. W. 574. But the information was not drawn under or to cover any embezzlement except the one charged under section 9934, heretofore quoted.

The next assignment is that “no demand for the return of the property alleged to have been embezzled is set forth.” Drawn under this section, the information did not need any allegation as to demand, as the statute does not make demand an element of the offense. 15 Cyc. 522, and authorities under note 27, and 7 Ency. Pl. & Pr. 440. “It is necessary to allege a demand made upon the defendant to pay the money or return the property and his refusal to do so only when the statute makes such demand and refusal elements of the crime.” See, also, Keys v. State, 112 Ga. 392, 37 S. E. 762, 81 Am. St. Rep. 63, and note, and State v. Blackley, 138 N. C. 620, 50 S. E. 310, that:

“Where a statute defining embezzlement does not make a demand necessary to support a conviction, proof of a demand is unnecessary.” Territory v. Munroe, 10 Ariz. 53, 85 Pac. 651.

[3] Defendant then alleges that “there is no allegation set forth of conversion by the defendant.” This is predicated upon the use of the words “fraudulently appropriate” in the information, instead of the statutory terms “fraudulently convert” in the averment that said defendant “did willfully, fraudulently, and feloniously appropriate the same to his own use * * * without the consent of said Carl Anderson.” The objection is unsound. Section 9929 defines “embezzlement” to be “the fraudulent appropriation of property by a person to whom it has been entrusted,” and section 9934 declares that, under the circumstances there stated, whoever “fraudulently converts the same * * * to his own use is guilty of embezzlement,” the very definition of which is the fraudulent appropriation of property by a person to whom it has been entrusted. In other words, the term “convert” means no more than is signified by the term “appropriation” as used in defining this particular crime.

See, also, section 9936, construed in State v. Bickford, 28 N. D. ---, 147 N. W. 407, at page 418. And the information charges the commission of the crime of embezzlement by felonious appropriation of property. The terms are words of art as used in the information for this particular crime, and therefore have a certain and definite meaning. Teston v. State, 50 Fla. 137, 39 South. 787. Counsel in this connection draws the inference that, because the statute uses the word “converts,” a demand must be alleged before a conversion to constitute embezzlement is charged. The cases heretofore cited establish the law to be the contrary. See, also, People v. Ward, 134 Cal. 301, 66 Pac. 372, from which we quote:

“A demand is not ‘an indispensable requirement of law in all cases,’ as contended by appellant, nor can it be true that ‘without such demand no offense (embezzlement) exists.’ A demand, followed by a refusal, if the other essential facts exist, is evidence of embezzlement, and sometimes indispensable evidence of it; but it is the fraudulent and felonious conversion of the money or other property that constitutes the offense, and that may often be proved without a demand”-citing authority.

This is true, of course, only where a demand is not a part of the definition of the embezzlement charged.

It is urged that the information does not sufficiently charge the existence of a fiduciary relationship between defendant and Anderson, or define the same, or allege that the money was held by defendant in a fiduciary capacity and appropriated to a purpose not in the lawful execution of the trust under which it was held. The information charges the money to have been in the possession and under the control of defendant and to have been the property of Anderson, intrusted to the defendant by him for safe-keeping, for the use and benefit of Anderson, and Anderson's money, so held by defendant for such purposes, was by defendant fraudulently appropriated to his own use, a purpose not in the due and lawful execution of his trust and this without Anderson's consent. The words “for safe-keeping” define the character of the holding by defendant of Anderson's money so intrusted and in Hoff's possession and control, and that the same is alleged to be for the benefit of Anderson. The facts stated make the defendant a bailee of the money under the only conclusion of law to be drawn therefrom. This sufficiently meets the requirement that the fiduciary relationship and character of the holding and possession of the money shall appear. It may be true...