State v. Laechelt
| Decision Date | 18 November 1908 |
| Citation | 118 N.W. 240,18 N.D. 88 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Pierce county; Burr, J.
W. A Laechelt was convicted of embezzlement, and appeals.
Reversed.
Reversed and remanded.
Tyler & Woodward, for appellant.
Where a name is material, evidence must follow the charge of the information. Roush v. State, 51 N.W. 755; 1 Bishop on Criminal Law, 485; Sykes v. People, 132 Ill. 32; State v. Woodrow, 42 P. 714.
When the accused is a witness he may be questioned to test his credibility, and matter as to his direct examination, but not as to matters foreign thereto. State v. Underwood, 44 La. Annual, 852; Sailor v. Commonwealth, 30 S.W 390; State v. Chamberlain, 89 Mo. 129; Fossdahl v. State, 62 N.W. 185; People v. Thomas, 9 Mich, 321; State v. Saunders, 14 Ore. 300; People v. O'Brien, 6 P. 695; Gale v People, 25 Mich. 156; Cliffton v. Granger, 53 N.W. 316; Re Lewis, 39 How. Pr. 155.
T. F. McCue, Attorney General, and Albert E. Coger, State's Attorney, for respondent.
Variance to be fatal must have been in a material matter, and calculated to mislead defendant to his prejudice. People v. Main, 46 P. 612; State v. Short, 6 N.W. 584; State v. Childers, 49 P. 801; State v. Crawford, 23 N.W. 684; State v. Blakeley, 86 N.W. 419; State v. Vincent, 91 N.W. 347; State v. Watson, 1 P. 770; People v. Smith, 44 P. 663; State v. Gordon, 42 P. 346; State v. Flack, 29 P. 571; Bish New Crim. Pro. 2, Sec. 731-732; Sanders v. State, 12 S.E. 1058; People v. Arras, 26 P. 766.
Evidence of other crimes to show motive, intent, absence of mistake, or common scheme or plan is admissible. Underhill on Crim. Ev. 111; 4 Elliott on Ev. Sec. 2721; 10 Am. & Eng. Enc. Law 1032-1033, Note 2; 62 L. R. A. 264-269.
Deposit of check to its owner's credit but to cover previous shortage of him depositing is a conversion. State v. Baumhager, 9 N.W. 704; State v. Hosher, 67 P. 386; Territory v. Meyer, 24 P. 183; State v. Palmer, 20 P. 270; Bowman v. Brown, 3 N.W. 612; Spalding v. People, 49 N.E. 993; Bonding Co. v. Milwaukee Co. 91 Md. 733, 48 Ill. 72.
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 employe 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 the 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 and 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 Ore. 296; 42 P. 1002; People v. Arras, 89 Cal. 223, 26 P. 766. Section 9864, Rev. Codes 1905, provides: "In an information or indictment for larceny or embezzlement of money, bank notes, certificates of stock, or valuable securities * * * it is sufficient to allege the larceny or embezzlement * * * to be of money, bank notes, certificates of stock or valuable securities, without specifying the coin, number, denomination, or kind thereof." In People v. Arras, supra, the Supreme Court of California, in disposing of the question of alleged variance where the information described the stolen check as drawn in favor of "one Pennington" instead of "A. G. Pennington or bearer," as the evidence disclosed, said: "If this be a variance, is it a material variance?" A material variance between the proof and the information arises when an acquittal of the defendant under the information would be no bar to a further prosecution for the same offense. People v. Hughes, 41 Cal. 234. In this case the check described in the information and the check introduced in evidence have so many earmarks in common as to establish the identity of the two instruments as being one and the same beyond all doubt, and indicate conclusively that the misdescription could not have misled the defendant to his prejudice, and that a conviction or acquittal of the offense charged in this information would forever bar any...
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