State v. Kortgaard

• Decision Date: 05 July 1895
• Citation: 62 Minn. 7,64 N.W. 51
• Parties: STATE v. KORTGAARD.
• Court: Minnesota Supreme Court

62 Minn. 7

64 N.W. 51

STATE

v.KORTGAARD.

Supreme Court of Minnesota.

July 5, 1895.

(Syllabus by the Court.)

1. “In any prosecution for the crime of embezzling the money, & c., 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 a certain sum of money without specifying any particulars of such embezzlement, and on the trial evidence may be given of any such embezzlement within six months next after the time stated in the indictment.” Gen. St. 1894, § 7262. Held, that this section is applicable to bank officers indicted for embezzlement or statutory larceny under subdivision 2, § 415, of the Penal Code (section 6709, subd. 2, Gen. St. 1894).

2. Also, that the state may introduce evidence, in support of the substantive offense charged, of an act of embezzlement committed on the date alleged in the indictment, and also of any other act of embezzlement committed within six months thereafter.

3. Held, also, that the evidence in this case showed that the defendant had such possession, custody, and control of the funds of the bank that the appropriation of them by him to his own use with intent to deprive the bank of its property would constitute embezzlement or statutory larceny. If the position or employment of an officer of a bank gives him a superior or a joint and concurrent possession, custody, or control of the bank funds with subordinate officers or agents of the bank, it constitutes such possession, custody, or control as will render the appropriation of the funds to his own use, with the intent aforesaid, embezzlement or statutory larceny.

4. If a bank officer appropriates to his own use the funds of the bank intrusted to his custody, with intent to deprive the bank of its property, it is none the less embezzlement because done under the guise or form of a loan to himself or an overdraft of his account.

5. Where an action is in itself unlawful, the law will presume a criminal intent from the intentional ommission of the act.

6. Certain parts of the charge considered, and held not to contain prejudicial error.

Appeal from district court, Hennepin county; Seagrave Smith, Judge.

Kristian Kortgaard was convicted of embezzlement, and appeals. Affirmed.

F. B. Hart, for appellant.

H. W. Childs, Atty. Gen. G. B. Edgerton, Asst. Atty. Gen. Frank M. Nye, Co. Atty., and James A. Peterson, Asst. Co. Atty., for the State.

MITCHELL, J.

The defendant was indicted, under subdivision 2, § 415, of the Penal Code (section 6709, subd. 2, Gen. St. 1894), for embezzling $23,000 of the money of the State Bank of Minneapolis. The alleged embezzlement was charged in the indictment to have been committed April 6, 1893. The state served a bill of particulars, specifying the items claimed to have been embezzled as follows: April 6, 1893, $10,000; April 28, 1893, $10,000; June 10, 1893, $3,000,-total, $23,000. A trial resulted in a verdict of guilty as charged, and that the amount embezzled was $13,000. Upon a motion for a new trial, the court held that the evidence was not sufficient to justify a conviction for embezzling any sum in excess of $3,000, but that the evidence was sufficient to justify a conviction of embezzling the $3,000 specified in the bill of particulars as having been taken June 10, 1893, and therefore denied a new trial, as the error of the jury as to the amount embezzled was error without prejudice, the difference in amount being immaterial, as it would not affect the grade of the offense.

1. Upon the trial, the state introduced evidence tending to prove that defendant embezzled $10,000 April 6, 1893, the date alleged in the indictment. Thereafter the state was permitted, against the objection and exception of defendant, to introduce evidence, in support of the substantive offense charged in the indictment, tending to prove the further embezzlement by defendant of $10,000 on April 28, 1893, and of $3,000 on June 10, 1893. The state claimed the right to introduce this evidence under Gen. St. 1894, § 7262, which provides that “in any prosecution for the crime of embezzling the money, &c., 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.” The defendant was president of the bank whose funds he was alleged to have embezzled, and the contention of his counsel is that this statute is not applicable to bank officers. His argument is that we borrowed this statute from the state of Massachusetts in 1851; that prior to that time it had been held by the courts of that state, in Com. v. Wyman, 8 Metc. 247, that its provisions were inapplicable to bank officers, and that it must be assumed that, in adopting it, we also adopted the judicial construction already given to it in that state. The learned counsel is somewhat in error as to the history of this statute. As a matter of fact, we inherited it, or at least adopted it, from Wisconsin, of which we were formerly a part. Wisconsin presumably adopted it from Michigan, of which it was once a part. Michigan probably adopted it, either mediately or immediately, from Massachusetts, which, so far as we are advised, was the first state to enact such a statute. An examination of the decision of the court in Com. v. Wyman will show that it was not made upon this section standing alone, or upon the ground that there was anything in either the language or purpose of the statute, considered by itself, which required any such construction. In fact, the court impliedly admits that, construed by itself, it would apply to officers of incorporated companies including banks; but they arrived at the legislative intent from the position which the section occupied in the statutes, and from the existence of other provisions expressly and solely applicable to embezzlement by bank officers. Hence, whatever might have been urged in favor of this construction, did we retain the special and express provisions relating to embezzlement by bank officers corresponding to those of Massachusetts relating to the same subject, is deprived of all force in view of the fact that these special provisions have been all repealed, and subdivision 2, § 415, of the Penal Code (section 6709, subd. 2, Gen. St. 1894) enacted, which applies to all cases of embezzlement, and wipes out all distinctions which may have previously existed between embezzlements by officers of banks and by any other officer or agent. By thus doing away with all such distinctions, and enacting a single provision covering all embezzlements, and at the same time retaining in full force Gen. St. 1894, § 7262, the conclusion seems to us irresistible that the legislative intent was that this section should apply alike to all cases falling within the provisions of subdivision 2, § 415, of the Penal Code (section 6709, subd. 2, Gen. St. 1894). Its language is broad enough to include all such cases, and, when its purpose is considered, embezzlement by bank or other corporate officers is clearly within the mischief intended to be remedied. While all agents are not officers, yet all officers are agents.

2. It is further contended, however, that, even if the statute is applicable, yet the date alleged in the indictment is not a part of, or within, the six months. This contention is based upon the use of the words “next after” in the statute. If we correctly understand counsel, his position is that if the state desires to avail itself of the provisions of this section it cannot introduce evidence, in support of the substantive offense, of an act of embezzlement committed on the day alleged in the indictment; that if it does so, it is confined to evidence of embezzlement committed on that particular day. To illustrate by the present case, when the date alleged in the indictment is April 6th, counsel's contention is that if the state introduces evidence of embezzlement committed on that day, it is limited in its proof of the substantive offense to acts committed on that particular date; that, if it desires to avail itself of the statute, it cannot prove any act of embezzlement committed earlier than April 7th. We are of opinion that such a construction of the statute is unreasonable, and not in accordance with the legislative intent. If correct, then, in order to make the statute applicable, the state would be required to allege a date in the indictment at least one day earlier than the date of the first act of embezzlement of which it intended to offer any proof. Our construction of the statute is that it permits the state to introduce evidence of an act of embezzlement committed on the day stated in the indictment, and of any other acts of embezzlement committed within six months next after that date. If the state had first introduced evidence, in support of the substantive offense, of an embezzlement committed before the time stated in the indictment and then introduced evidence of embezzlement committed within six months after the time stated in the indictment, thus perhaps extending the range of inquiry to a period exceeding six months, a very different question would have been presented.

3. It is further contended that the evidence failed to show that the defendant had any such possession, custody, or control of the funds of the bank that the appropriation of them by him to his own use would constitute embezzlement or statutory larceny,...