State v. Holmes

• Decision Date: 19 June 1896
• Docket Number: Nos. 10,048 - (57).,s. 10,048 - (57).
• Citation: 65 Minn. 230
• Parties: STATE OF MINNESOTA v. WILLIAM F. HOLMES.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

65 Minn. 230

STATE OF MINNESOTA v. WILLIAM F. HOLMES.¹

Nos. 10,048 - (57).

Supreme Court of Minnesota.

June 19, 1896.

Appeal by defendant from an order of the district court for Wabasha county, Gould, J., denying a motion for a new trial. Reversed.

The eleventh assignment of error, referred to in the opinion, was as follows: "The court erred in instructing the jury as follows: `And if his intent was to appropriate it to his own use, then he would be guilty, although he did not intend to defraud the bank.'"

H. D. Stocker, F. M. Wilson, J. F. McGovern, and H. W. Morgan, for appellant.

H. W. Childs, Attorney General, George B. Edgerton, and John H. Mullen, County Attorney, for respondent.

MITCHELL, J.

The defendant was indicted, tried, and convicted of the crime of larceny (embezzlement), as defined by G. S. 1894, § 6709, subd. 2.

The indictment alleged that the defendant, on June 29, 1895, being the president of the Merchants Bank of Lake City, and, as such, having in his possession, custody, and control —

"A certain sum of money, to wit, nine thousand dollars, in lawful, current, and genuine money of the United States of America, then and there of the value of nine thousand dollars, a more particular description of which said money being to the grand jury unknown, and all of which said money and personal property was then and there the money and personal property of and belonging to said The Merchants Bank, * * * did, then and there wilfully, unlawfully, wrongfully, knowingly, and feloniously appropriate the money aforesaid, and the whole thereof, to his own use, with the intent then and there by him * * * to defraud," etc.

Upon the trial, the state, against objection and exception, introduced, as proof of the substantive offense charged, evidence tending to show that on June 29, 1894, the defendant unlawfully and feloniously appropriated to his own use $5,000 of the money of the bank, which was in his custody and control as president of the bank. The manner in which the evidence tended to show that the act was committed was as follows: Defendant, having an open deposit account with the bank, but which was already overdrawn, drew his check for $5,000, payable to the bank, on another bank, at Casselton, North Dakota, in which he had no funds to meet it; placed it among the securities or cash items of the Merchants Bank of Lake City, where it was allowed to remain; charged the account of the Casselton bank with the amount, so as to make it appear that it owed the Lake City bank that amount; then he credited his own account with $5,000, as if he had deposited that amount; and then, on the same day, drew his checks on the Lake City bank, on which he drew out and appropriated to his own use the moneys of the bank to the full amount of this fictitious deposit of $5,000. It was on this transaction, as constituting the substantive offense charged, that defendant was convicted of larceny of $5,000.

1. The first point made by the defendant is that evidence of an act of embezzlement committed prior to the time stated in the indictment was inadmissible as evidence of the substantive offense charged, or, otherwise expressed, that the indictment could not be sustained by evidence of acts committed before the time stated. This contention is predicated upon the provisions of G. S. 1894, § 7262, which reads as follows:

"In any prosecution for the offense of embezzling the money, bank notes, checks, drafts, bills of exchange, or other security for money, of any person, by a clerk, agent or servant of such person, it shall be sufficient to allege generally in the indictment an embezzlement of money to a certain amount without specifying any particulars of such embezzlement, and on the trial evidence may be given of any such embezzlement committed within six months next after the time stated in the indictment; and it shall be sufficient to maintain the charge in the indictment, and shall not be deemed a variance, if it is proved that any money, bank note, check, draft, bill of exchange, or other security for money, of such person, of whatever amount, was fraudulently embezzled by such clerk, agent or servant within the said period of six months."

If the provisions of this section govern this case, their language would seem to be decisive in favor of defendant's contention. While statutes having the same general purpose are numerous, this particular one was enacted over 60 years ago, in Massachusetts,² whence it was borrowed by Michigan,³ from which it was inherited by Wisconsin,⁴ from which it was, in turn, inherited by Minnesota.⁵ For its early history, see Commonwealth v. Wyman, 8 Metc. (Mass.) 247.

An element that enters into the definition of embezzlement is the fiduciary and confidential relation between the owner and the custodian of the property. This relation affords the amplest opportunity to misappropriate money, funds, and securities, and often presents great difficulty in proving exactly when and how it was done, or the precise description of the property misappropriated. Embezzlement in such cases very often consists of a series of acts running through a considerable period of time. These separate acts, and the amount and description of the property misappropriated at any one time, may not be susceptible of direct proof, while the aggregate result is. The body of the crime consists of this series of acts done by virtue of the fiduciary relation between the employer and the employé, all of which virtually constitute a continuing breach of trust. Prior to this statute, conviction was often difficult, if not impossible. Moreover, if the state was compelled to elect to rely on a single one of this series of acts as constituting the substantive offense, it would often be difficult to secure a conviction adequate to the offense actually committed, if the defendant, although embezzling thousands in the aggregate, had used the precaution to take only a small sum at any one time.

The statute was enacted to avoid these difficulties — First, by authorizing this general form of indictment; second, by permitting this liberality of proof as to the description of the property; and, third, by permitting a conviction of the aggregate amount embezzled by a series of acts from the same employer.

So far the provisions of the act operate in favor of the prosecution. But, under the common law and general statutory rule as to time, the state, unless otherwise limited, could prove a series of acts extending as far back as the statute of limitations would permit, and down to the date of finding the indictment. This might work an injustice to the defendant. Hence, in view of the latitude in pleading and proof allowed the state, a limitation as to time was imposed for the protection of the defendant, viz. that proof of the substantive offense shall be limited to acts committed within six months next after the time stated in the indictment. This creates an exception to the general rule stated in section 7244, that:

"The precise time at which the offense was committed need not be stated in the indictment, but may be alleged to have been committed at any time before the finding thereof, except where the time is a material ingredient in the offense."

The case falls within the familiar rule of statutory construction that when a general intention is expressed in a statute, and...