State v. Holton

• Decision Date: 26 December 1902
• Citation: 88 Minn. 171,92 N.W. 541
• Parties: STATE v. HOLTON.
• Court: Minnesota Supreme Court

88 Minn. 171

92 N.W. 541

STATE

v.HOLTON.

Supreme Court of Minnesota.

Dec. 26, 1902.

Case certified from district court, Olmsted county; Arthur H. Snow, Judge.

Ole E. Holton was indicted for larceny as bailee. General demurrer to plea sustained, and question certified. Order affirmed.

Syllabus by the Court

1. In an indictment for larceny by a bailee, it is necessary to allege the name of the bailor, and in concise terms the purpose or use for which the property was intrusted to the defendant; for this is an essential ultimate fact, which must be proven in order to sustain the indictment.

2. After a jury was impaneled for the trial of the defendant on an indictment for larceny by a bailee, the court sustained his objection to any evidence on the part of the state, for the reason that the indictment did not allege facts constituting a public offense, and dismissed the indictment without directing that the case be submitted to another grand jury. Held, that this was not a bar to a second indictment for the same offense.W. B. Douglas, Atty. Gen., and Thomas Fraser, for the State.

Thomas Spillane, for defendant.

START, C. J.

On December 12, 1901, the grand jury returned to the district court of the county of Olmsted an indictment against the defendant, accusing him of the crime of grand larceny in the second degree, in that he feloniously appropriated to his own use certain money in his possession as bailee, with intent to deprive the owner thereof, naming him. The name of the bailor was not alleged in the indictment, nor any fact showing that the defendant was a bailee of the money. The defendant pleaded not guilty, and a jury was impaneled and sworn to try the cause. A witness was called by the state and sworn, when the defendant objected to any evidence being given in the case because the indictment did not state a public offense. The objection was sustained, and the state was not permitted to give any evidence in support of the indictment. The defendant then moved the court to instruct the jury to return a verdict of not guilty. This the court denied, the defendant excepting, and dismissed the indictment, discharged the defendant, and exonerated his bail. The court did not direct the case to be resubmitted to the same or another grand jury. At the next general term of the court, and on June 18, 1902, the grand jury returned into court another indictment against the defendant for the larceny of the same money, which duly alleged the name of the bailor and facts showing that the defendant was a bailee of the money. When called upon to plead to this last indictment, he tendered the plea of former jeopardy, alleging the foregoing facts. The state interposed a general demurrer to the plea, and the court sustained it. In doing so the court passed upon, and decided adversely to the defendant, these questions: ‘(1) Did the former indictment state facts sufficient to constitute a public offense? (2) If it did, is defendant now precluded, nevertheless, from asserting its sufficiency in support of his plea of former jeopardy, by his objection under it on the ground of its alleged insufficiency, by the ruling in his favor on the objection, and by the consequent discharge of the jury without verdict, the dismissal of said former indictment, and the discharge of defendant therefrom? (3) Is the second indictment barred by reason of the fact that the court, on holding the former indictment bad, omitted to order a resubmission of the case to a subsequent grand jury?’ Thereupon the district court duly certified the questions to this court for its decision, pursuant to Gen. St. 1894, § 7395.

1. Did the former indictment state facts sufficient to constitute a public offense? We answer the question in the...