State v. Laechelt

• Decision Date: 18 November 1908
• Citation: 18 N.D. 88,118 N.W. 240
• Parties: STATE v. LAECHELT.
• Court: North Dakota Supreme Court

18 N.D. 88

118 N.W. 240

STATE

v.LAECHELT.

Supreme Court of North Dakota.

Nov. 18, 1908.

Syllabus by the Court.

In a prosecution for the embezzlement of a certain check, the information described the check as drawn by “Stromen Bros.” to “Bovey-Shute Lumber Company,” while the proof disclosed that the same was drawn by “Stromen Bros., by Ed. T. Stromen, by A. T. Stromen,” to “Bove-Shaut Lumber Company.” Held, that the variance was immaterial.

The chief function of a criminal information is to fully and fairly impart knowledge to the accused of the nature of the charge against him, to the end that he may prepare his defense thereto. It is accordingly held that, under an information charging embezzlement of a check, the state will not be permitted to show other embezzlements by the accused, and that he used the same to cover up such prior embezzlements. Where proof of this character is relied upon for conviction, the defendant should be apprised thereof by the information.

Evidence examined, and held insufficient to support the judgment of conviction.

Appeal from District Court, Pierce County; A. G. Burr, J.

W. A. Laechelt was convicted of embezzlement, and appeals. Reversed.Tyler & Woodward, for appellant. T. F. McCue, Atty. Gen., and Albert E. Coger, State's Atty., for respondent.

FISK, J.

Appellant appealed from a judgment of conviction of the crime of embezzlement. He was charged by the information with having embezzled a certain bank check, dated December 12, 1906, for the sum of $355, drawn upon the Merchants' Bank, Rugby, N. D., by Stromen Bros., the said check being the property of the Bovey-Shute Lumber Company, appellant's employer, and received by appellant in the course of his employment by such firm. The evidence discloses that such check was received by defendant as employé of said firm, and was, pursuant to general instructions, deposited by him in the Merchants' Bank at Rugby, to the credit of said firm, although he made no entry in the books of the company of the receipt of such check, as was his duty to do. This evidence is not controverted by the state, but apparently the theory of the prosecution was that defendant had theretofore committed other acts of embezzlement from his said employer, and that he used the check in question to cover up such other shortages or embezzlements. The accused was in no manner apprised, by the facts alleged in the information, that the state relied on any such theory for conviction. The proof of other embezzlements consisted chiefly of testimony elicited from defendant on cross-examination and over his objection. Four grounds are urged by appellant's counsel for a reversal of the judgment, as follows: (1) It is contended that it was reversible error to admit in evidence the check in question, for the reason that it is not the check described in the information, the information alleging that the check was drawn by “Stromen Bros.” to “Bovey-Shute Lumber Company,” while the check received in evidence shows on its face to have been drawn by “Ed. T. Stromen by A. T. Stromen” to “Bove-Shaut Lumber Company”; (2) it is contended that the trial court committed prejudicial error in permitting proof to be made of other embezzlements; (3) that it was error to compel defendant on cross-examination to give testimony relative to other defalcations; and (4) it is contended that the trial court erroneously imposed a fine, in addition to imprisonment, as a part of the judgment.

We think the first contention without merit. There was no material variance between the information and the proof with reference to the description of the check claimed to have been embezzled by defendant. The alleged variance is that in the information the check is alleged to be the property of “Bovey-Shute Lumber Company,” while the proof is that it was drawn to “Bove-Shaut Lumber Company”; also that the information alleges that it was drawn by “Stromen Bros.,” whereas the proof discloses that it was signed “Stromen Bros., by Ed. T. Stromen, by A. T. Stromen.” The information does not allege the name of the payee of the check, but merely that it was the property of the Bovey-Shute Lumber Company, and the evidence fully sustains such allegation. An averment of the name of the payee was unnecessary, as the instrument was otherwise sufficiently described. State v. Rue, 72 Minn. 296, 75 N. W. 235. As to the variance with reference to the names of the makers, we think the same was not material, and it in no manner tended to prejudice defendant in his substantial rights. The authorities cited by appellant's counsel in support of their contention are not in point, as they are forgery cases. There is a wide difference between the rule of criminal pleading in cases of forgery and that in cases of larceny and embezzlement, as the following authorities will show: 2 Bish. New Crim. Pro. § 732; State v. Thompson, 28 Or. 296; 42 Pac. (Or.) 1002; People v. Arras, 89...