State v. Holmes

Decision Date19 June 1896
Citation68 N.W. 11,65 Minn. 230
PartiesSTATE v HOLMES.
CourtMinnesota Supreme Court

OPINION TEXT STARTS HERE

(Syllabus by the Court.)

1. Under an indictment for statutory larceny or embezzlement in the general form authorized by Gen. St. 1894, § 7262, the state may prove any and all acts of embezzlement by the defendant in the same employment committed within six months next after the time stated in the indictment; and the defendant may be convicted of the whole. But, under such an indictment, evidence of acts of embezzlement committed prior to the time stated in the indictment is inadmissible as evidence of the substantive offense. It would only be admissible, if at all, for a collateral purpose; for example, showing the intent with which the acts relied on, as constituting the substantive offense, were committed.

2. But section 7262 is permissive, and not mandatory; and if the state elects to waive its benefits, and to frame an indictment which is sufficient, and limit itself to evidence which is admissible, irrespective of the provisions of the section, the six-months limitation will not apply, and the indictment can be sustained by evidence of an act of embezzlement committed prior to the time stated therein.

3. The charge of the court as to the effect of evidence of defendant's good character held erroneous, because in effect instructing the jury that such evidence is only to be considered when the other evidence leaves a doubt in their minds of the defendant's guilt.

4. A remark of the county attorney during his argument to the jury held to amount to an allusion to the fact that the defendant did not testify, which is prohibited by Gen. St. 1894, § 5658.

Appeal from district court, Wabasha county; Gould, Judge.

William F. Holmes was convicted of embezzlement, and from an order denying a new trial he appeals. Reversed.H. D. Stocker, F. M. Wilson, J. F. McGovern, and H. W. Morgan, for appellant.

H. W. Childs, Atty. Gen., and John H. Mullen, Co. Atty., for respondent.

MITCHELL, J.

The defendant was indicted, tried, and convicted of the crime of larceny (embezzlement), as defined by subdivision 2, § 6709, Gen. St. 1894. The indictment alleged that the defendant, 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, $9,000, in lawful, current, and genuine money of the United States, then and there of the value of $9,000, a more particular description of which said money being to the grand jury unknown, all of which said money and personal property was then and there the money and personal property of and belonging to said Merchants' Bank, *** did, on June 29th, 1895, unlawfully and feloniously appropriate said money to his own use, with intent then and there 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, N. D., 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 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 the 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 Gen. St. 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 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, whence it was borrowed by Michigan, from which it was inherited by Wisconsin, from which it was, in turn, inherited by Minnesota. For its early history, see Com. 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...

To continue reading

Request your trial
37 cases
  • State v. Levy
    • United States
    • Idaho Supreme Court
    • January 21, 1904
    ... ... defendants to testify, is ground for reversal. ( McDonald ... v. People, 126 Ill. 150, 9 Am. St. Rep. 547, 18 N.E ... 817; Sholewater v. State, 84 Ind. 562; Coleman ... v. State, 111 Ind. 563, 13 N.E. 100; State v ... Ryan, 70 Iowa 154, 30 N.W. 397; State v ... Holmes, 65 Minn. 230, 68 N.W. 11; State v ... Weddington, 103 N.C. 364, 9 S.E. 577; Jordan v ... State, 29 Tex. App. 595, 16 S.W. 543; 1 Bishop's ... Criminal Procedure, sec. 1186.) The [9 Idaho 487] defendant ... in this case should have been granted a new trial by reason ... of the acts and ... ...
  • Anderson v. State
    • United States
    • Wyoming Supreme Court
    • April 14, 1921
    ... ... intendment" 22 Cyc. 339; U. S. v. Cook, 17 ... Wall. 174; 21 L.Ed. 538. The prosecutor was guilty of ... misconduct by referring in his argument to the unsworn ... statement of defendant. Leslie v. State, 10 Wyo. 10, ... 69 P. 2; State v. Holmes, 65 Minn. 236; 68 N.W. 11; ... Wilson v. U. S. 149 U.S. 68; 37 L.Ed. 650.) The ... state was not entitled to cross examine upon an unsworn ... statement made by defendant, but it is improper to refer to ... the fact. ( State v. Taylor, 7 Idaho 134; 61 P. 288.) ... Instruction No. 5 with ... ...
  • Com. v. Richmond
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • January 3, 1911
    ... ... [93 N.E. 818] young, active, able-bodied, and had been at ... work for many months in a state institution in a country ... town. Although the amount of his compensation was not shown ... the jury might have used their general knowledge in ... 737, 19 Am. St. Rep. 815; ... State v. Baldoser, 88 Iowa, 55, 55 N.W. 97; Yarbrough v ... State, 70 Miss. 593, 12 So. 551; State v. Holmes, 65 Minn ... 230, 68 N.W. 11; State v. Marceaux, 50 La. Ann. 1138, 24 So ... 611; State v. Williams, 11 S.D. 64, 75 N.W. 815; Showalter v ... ...
  • Alt v. Groff
    • United States
    • Minnesota Supreme Court
    • June 19, 1896
    ... ... This is in accordance with all the decisions of this court, as well as the uniform practice in this state from the earliest date. State v. Bachelder, 5 Minn. 223 (Gil. 178); Barber v. Evans, 27 Minn. 92, 6 N. W. 445;School Dist. No. 73 v. Wrabeck, 31 ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT