State v. Jones

• Citation: 25 Idaho 587,138 P. 1116
• Parties: STATE, Respondent, v. DANIEL R. JONES, Appellant
• Decision Date: 21 February 1914
• Court: United States State Supreme Court of Idaho

138 P. 1116

25 Idaho 587

STATE, Respondent, v. DANIEL R. JONES, Appellant

Supreme Court of Idaho

February 21, 1914

EMBEZZLEMENT-ADMISSION OF EVIDENCE-COMPETENCY OF CASHIER AS SIGNER OF CHECK TO TESTIFY AFTER INSOLVENCY OF BANK-INTENTION AND GOOD FAITH OF SIGNER OF CHECK MAY BE SHOWN WHEN MATERIAL.

1. Sec 7065, Rev. Codes, defines embezzlement as follows "Embezzlement is the fraudulent appropriation of property by a person to whom it has been intrusted."

2. Where a person is charged by an information with the crime of embezzlement, the intent may be shown and established either by direct or circumstantial evidence.

3. Where a cashier of an insolvent bank issues a check upon such bank, payable to V., to whom the cashier was indebted, and the evidence shows conclusively the purpose of the defendant in the transaction, and that the bank recognized the check and the notes given therefor, and the credits that were considered in due course when the check was submitted through the different banks and when it reached the bank upon which the check was drawn, and the evidence is admitted upon the part of the appellant and also the officers of the bank, such evidence does not show embezzlement.

4. Where a cashier at the time a check was drawn was indebted to the bank in a sum larger than the check, and a receiver was appointed for the bank after the check was issued, and the evidence shows that the motive, intention and belief of the appellant is relevant to the issue, it is competent for such person to testify directly upon that issue; or, stated differently, when the motive of a witness in the performance of a particular act, or in making a particular declaration becomes a material issue, he may himself be sworn in regard to it, notwithstanding the diminished credit to which his testimony may be entitled as coming from the mouth of an interested witness. It was error in the trial court to prevent the defendant from explaining any and all acts by him done with reference to the check in question, and the refusal of the court to allow him to further testify was prejudicial error against the rights of the defendant for which this case should be reversed.

5. Where the evidence shows conclusively that the intention or good faith of the signer of the check was material to the suit, it may be shown directly, as well as from circumstances; and the party himself, if a competent witness may testify directly to his intention or understanding, unless prevented by some other principle of law applicable to the particular case, and the refusal of the trial court to permit this evidence to be given is reversible error.

6. Held, that the record in this case shows clearly and conclusively that the check was in due course received by the bank and entry thereof as a charge against the defendant was made on the books of the bank. It is shown that the bank accepted the course of defendant in his actions from the time of the issuing of the check until the case came on for trial.

7. Held, that the record and the evidence in this case are not sufficient to support the verdict and findings of the jury that the appellant was guilty of embezzlement.

8. Held, that the judgment should be set aside in this case because the evidence is not sufficient to justify the judgment of conviction of the appellant.

9. Held, that the trial court erred in denying the motion for a new trial, and that the motion for a new trial should be granted.

APPEAL from the District Court of the Sixth Judicial District for the County of Bingham. J. M. Stevens, Judge.

The appellant was prosecuted on a charge of embezzlement and convicted and sentenced for a term of from one to fourteen years in the penitentiary. Judgment reversed.

Reversed.

D. C. McDougall, Hansbrough & Gagon and J. W. Jones, for Appellant.

"Unless the owner is deprived of the thing (the money or property) involved in the transaction, there can, of course, be no embezzlement. The owner must be deprived of the use of the property claimed to be embezzled by an adverse use or holding." (Higbee v. State, 74 Neb. 331, 104 N.W. 748; Chaplin v. Lee, 18 Neb. 440, 25 N.W. 609; McAleer v. State, 46 Neb. 116, 64 N.W. 358.) "To sustain the conviction of an agent for embezzling or converting to his own use the property of his principal, the facts must warrant the conclusion that such conversion was made by the agent with a felonious intent." (Hamilton v. State, 46 Neb. 284, 64 N.W. 965.)

It appears that the jury, upon retiring for its deliberation, took to the jury-room certain papers, books and records, which appear from the exhibits attached to the bill of exceptions never to have been introduced in evidence; while these so-called exhibits were repeatedly referred to in the testimony, yet not having been offered in evidence, the defendant had no opportunity to examine them or to cross-examine the witnesses touching the same, yet the jury was permitted to receive the same as evidence and to take the exhibits to the jury-room and there examine and discuss them. This was prejudicial error. (Alaska Commercial Co. v. Dinkelspiel, 121 F. 318, 57 C. C. A. 14; Ogden v. United States, 112 F. 523, 50 C. C. A. 380.)

Wherever the motive, intention or belief of a person is relevant to the issue, it is competent for such person to testify directly upon that point; or when the motive of a witness in the performance of a particular act, or in making a particular declaration becomes a material issue in a case, or reflects important light upon such issue, he may himself be sworn in regard to it, notwithstanding the diminished credit to which his testimony may be entitled as coming from the mouth of an interested witness. (Jones on Evidence, sec. 170.)

The rule thus stated is applicable to the right to testify in civil, quasi-criminal and criminal cases. (Watson v. Chesire, 18 Iowa 202, 87 Am. Dec. 382; Berkey v. Judd, 22 Minn. 287; Anderson v. Wehe, 62 Wis. 401, 22 N.W. 584; Germania Fire Ins. Co. v. Stone, 21 Fla. 555; Thurston v. Cornell, 38 N.Y. 281; Over v. Schiffling, 102 Ind. 191, 26 N.E. 91; Kerrains v. People, 60 N.Y. 221, 19 Am. Rep. 158; Roddy v. Finnegan, 43 Md. 490; Cortland County Superintendent etc. v. Superintendent etc., 44 N.Y. 22; Norris v. Morrill, 40 N.H. 395.)

"Intention is generally proved by circumstances, because usually there is no other mode of proof. But when the only person who knows the fact is accessible as a witness, his answer must necessarily be more direct evidence than any other; and if there is any reason to suspect his candor, the jury can make all the allowances called for by his position and demeanor." (Watkins v. Wallace, 19 Mich. 56, 75; White v. State, 53 Ind. 595; People v. Baker, 96 N.Y. 340; note, 21 Am. St. 314 et seq.; People v. Hughes, 11 Utah 100, 39 P. 492; State v. Maynard, 19 Nev. 284, 9 P. 514.)

J. H. Peterson, Attorney General, J. J. Guheen and T. C. Coffin, Assistants, and J. E. Good, for Respondent.

As to the sufficiency of the evidence, nothing further need be said except that the case is precisely similar to the case of State v. Sage, 22 Idaho 489, 126 P. 403.

"The production of a paper and an examination of witnesses in respect to it before a jury, the genuineness of the paper being proved or admitted, makes it evidence for both sides." (Commercial Bank of Buffalo v. Bank of State of New York, 4 Hill (N. Y.), 516; Alaska Commercial Co. v. Dinkelspiel, 121 F. 318, 57 C. C. A. 14.)

STEWART, J. Sullivan, J., concurs. AILSHIE, C. J., Dissenting.

OPINION

STEWART, J.

On November 13, 1911, an information was filed in the district court of the sixth judicial district in and for Bingham county charging the appellant, Daniel R. Jones, with the crime of embezzlement. The defendant was arraigned on November 14, 1911, and on November 15th entered a plea of not guilty. The cause was tried on June 2, 1913, and on June 4th a verdict of guilty was found and the value of the property embezzled was assessed at $ 1,000. A motion was made for a new trial and denied by the court on July 8th, and the trial court entered a judgment sentencing the defendant to serve a term of from one to fourteen years' imprisonment at hard labor in the penitentiary. The defendant appealed from the judgment.

The information charges the offense in the following language:

"The said Daniel R. Jones, on or about the 12th day of April 1911, at the county of Bingham and state of Idaho, and prior to the filing of this information, was then and there an agent and banker, to wit: Cashier of the Blackfoot State Bank, a corporation, then and there formed, organized, existing and doing business in the city of Blackfoot, Bingham county, Idaho, and pursuant to the laws of the state of Idaho, and as such agent and banker, as aforesaid, there then and there came and was under the control and in the possession of him, the said Daniel R. Jones, certain personal property for the use of another, to wit, for the use of the Blackfoot State Bank, a corporation, the said personal property being one certain bank check, drawn upon the Blackfoot State Bank, a corporation, as follows, to wit, one certain bank check drawn by the said Daniel R. Jones on the said Blackfoot State Bank, a corporation, in the sum of one thousand dollars, which said bank check was then and there of the value of one thousand dollars, lawful money of the United States, and the said Daniel R. Jones having received and had the possession and control of the before mentioned and described personal property, by virtue of his trust as said agent of the said Blackfoot State Bank, a corporation, and as such banker as aforesaid, and while the said Daniel R. Jones was in the possession of and had under his control, by virtue of his said trust as said agent ...