State v. Lottridge

• Decision Date: 06 March 1916
• Citation: 29 Idaho 53,155 P. 487
• Parties: STATE, Respondent, v. WILLIAM W. LOTTRIDGE, Appellant
• Court: Idaho Supreme Court

155 P. 487

29 Idaho 53

STATE, Respondent, v. WILLIAM W. LOTTRIDGE, Appellant

Supreme Court of Idaho

March 6, 1916

CRIMINAL LAW - APPELLATE PRACTICE - PRESUMPTION THAT LAW WAS COMPLIED WITH BY COURT OF RECORD-SUFFICIENCY OF INDICTMENT OR INFORMATION.

1. Under the law as it existed prior to the amendment of the appellate practice by the thirteenth session of the legislature (Sess. Laws 1915, pp. 319 to 324, inclusive), the only method of procuring a review in the supreme court of the evidence in a criminal case was by means of a bill of exceptions containing the evidence, or upon appeal from an order granting or denying a motion for a new trial.

2. While sec. 7855, Rev. Codes, requires the indictment or information in a felony case to be read and the plea to be stated to the jury, there is no statute expressly requiring a record to be kept of it, and, in the absence of a specific statutory requirement directing that such fact be recorded the presumption is, when the record is silent upon that point, that the proceedings were regular and that the law was complied with.

3. An information which contains a statement of the acts constituting the offense in ordinary and concise language and in such a manner as to enable a person of common understanding to know what was intended, and which contains no defect or imperfection, in matter of form, which tends to the prejudice of any substantial right of the defendant upon its merits, and which contains every element of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and which is sufficiently specific, definite and certain to enable him, in case another proceeding is taken against him for the same offense, to plead his former acquittal or conviction, is not subject to demurrer.

4. Even though a credit, in the nature of an overdraft, is intangible property, it may be in the custody and control of one not its owner, and may be feloniously converted to his use, and the owner may be deprived of it. Sec. 60, chap. 124, Sess. Laws 1911, makes such a credit the subject of embezzlement by a cashier or other officer or agent of a bank or trust company.

[As to what is embezzlement and who may commit it, see note in 87 Am.St. 19]

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

Appellant was convicted of embezzlement. Affirmed.

Affirmed.

J. M Stevens, C. R. Clute and E. W. Whitcomb, for Appellant.

After the jury had been impaneled and sworn, the information was not read and the plea of the defendant stated to the jury. (Sec. 7855, Rev. Codes; State v. Chambers, 9 Idaho 673, 75 P. 274; People v. Corbett, 28 Cal. 328; People v. Monaghan, 102 Cal. 229, 233, 36 P. 511; Crain v. United States, 162 U.S. 625, 640, 16 S.Ct 952, 40 L.Ed. 1097, 1101; State v. Crea, 10 Idaho 88, 76 P. 1013.)

It has been suggested that this court should presume that the proceedings in the court below were regular, and that the discrepancy in the record has occurred through inadvertence and mistake in making up the judgment-roll. (State v. Walton, 50 Ore. 142, 91 P. 490, 13 L. R. A., N. S., 811.)

"But the judgment-roll, although prepared by the clerk, is the record of the court. To it alone can we look to ascertain what the action of the court below was, and upon it determine whether an error was committed." (Schirmer v. People, 33 Ill. 276.)

It is impossible, in the very nature of things, for the defendant to have committed the crime of which he has been charged and convicted, because it is impossible for one to embezzle an overdraft. An overdraft is considered by bankers and construed by the courts to be a loan. (Bacon v. United States, 97 F. 35, 38 C. C. A. 37; United States v. Allis, 73 F. 165.)

"The property alleged to have been embezzled must be described, and the language used should be sufficiently definite to identify the property and show that it was such as may be the subject of embezzlement." (2 Ency. Pl. & Pr. 424; Commonwealth v. Merrifield, 4 Met. (Mass.) 468; State v. Edson, 10 La. Ann. 229; Grant v. State, 35 Fla. 581, 48 Am. St. 263, 17 So. 225.)

"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 thing 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; People v. Hemple, 4 Cal.App. 120, 87 P. 227; State v. Jones, 25 Idaho 587, 138 P. 1116.)

"In a prosecution for embezzlement, the evidence must clearly show the commission of the offense as charged and bring the act within the statute." (15 Cyc. 532; People v. Goodrich, 138 Cal. 472, 71 P. 509; Rauguth v. People, 186 Ill. 93, 57 N.E. 832; Parli v. Reed, 30 Kan. 534, 2 P. 635; State v. Williamson, 118 Mo. 146, 40 Am. St. 358, 23 S.W. 1054, 21 L. R. A. 827.)

J. H. Peterson, Atty. Genl., D. A. Dunning and Herbert Wing, Assts., and A. C. Cherry, for Respondent.

All we can do where there is no motion for new trial or statement properly made on such motion is to look into the judgment-roll itself (Caney v. Silverthorne, 9 Cal. 67), and if this be regular the judgment will be affirmed. (Burdy v. Steel, 1 Idaho 216.)

Upon appeal from a judgment alone no objection or exception can be properly considered that does not arise upon and appear from the record or judgment-roll as defined by sec. 7996, Rev. Codes. (State v. Suttles, 13 Idaho 88, 88 P. 238.)

All presumptions and intendments are in favor of the regularity of the proceedings of courts of record. (Lowe v. Turner, 1 Idaho 107; Goodman v. Minear Min. & Milling Co., 1 Idaho 131; Toulouse v. Burkett, 2 Idaho 288, 13 P. 172; State v. Preston, 4 Idaho 215, 38 P. 694; State v. Suttles, 13 Idaho 88, 88 P. 238.)

Where error is relied upon, it must affirmatively appear in the record. (State v. Haverly, 4 Idaho 484, 42 P. 506; State v. Corcoran, 7 Idaho 220, 221, 61 P. 1034.)

The failure of a bill of exceptions to state that the indictment was read to the jury does not authorize the assumption that it was not read, though the bill states that it contains a record of all the proceedings had on the trial. (Ison v. Commonwealth, 23 Ky. Law, 1805, 66 S.W. 184; Herr v. Commonwealth, 28 Ky. Law, 1131, 91 S.W. 666; People v. Wheatley, 88 Cal. 114, 26 P. 95.)

The information charges embezzlement of "said credit, overdraft and property," and the words "credit" and "overdraft" are the reverse and the obverse sides, respectively, of the same coin. (Smead v. Chandler, 71 Ark. 505, 76 S.W. 1066, 65 L. R. A. 353.)

He appropriated it by secreting it through fraudulent manipulation of the books of the bank, so that from those books it appeared that $ 2,500 of his debt to the bank had been wiped out. (People v. Lammerts, 164 N.Y. 137, 58 N.E. 22; State v. Sage, 22 Idaho 489, Ann. Cas. 1914B, 251, 126 P. 403; State v. Baumhager, 28 Minn. 226, 9 N.W. 704.)

In the case of State v. Sage, 22 Idaho 489, Ann. Cas. 1914B, 251, 126 P. 403, it was held that a check could be embezzled and conviction had for such embezzlement. The property represented by a check is no more tangible than the property represented by a credit in this case.

MORGAN, J. Sullivan, C. J., concurs. Budge, J., sat at the hearing but took no part in the decision.

OPINION

MORGAN, J.

Appellant was accused, by information, of the crime of embezzlement in violation of sec. 60, chap. 124, Sess. Laws 1911 (p. 404). He moved to quash the information and demurred to it upon the following grounds: "1. That said information does not substantially conform to the requirements of sec. 7677 of the Revised Codes of Idaho in this respect, namely: It does not contain a statement of the acts constituting the offense in ordinary and concise language, or in any language in such a manner as to enable a person of common understanding to know what is intended. 2. That the facts stated in said information do not constitute a public offense." The motion and demurrer were overruled and a trial was had, which resulted in a verdict and judgment of conviction. This appeal is from the judgment.

The following specifications of error are assigned in support of the appeal: 1. That after the jury had been impaneled and sworn the information was not read and appellant's plea was not stated to the jury; 2. That the court erred in overruling appellant's first cause of demurrer; 3. That the court erred in overruling appellant's second cause of demurrer; 4. That there is a fatal variance between the proof taken at the trial and the facts charged in the information.

No motion for a new trial was made, and while the record before us contains what purports to be the reporter's transcript of the evidence, it has not been settled by the trial judge as a bill of exceptions, nor does a bill of exceptions, in any form, appear in the record.

The law governing the procedure upon appeal from a district court to the supreme court, in criminal cases, was amended by the thirteenth session of the legislature (chaps. 146, 147, 148 149 and 150, Sess. Laws 1915, pp. 319 to 324, inclusive), and it is provided in said chapter 150 that "upon an appeal from a final judgment of conviction, if a reporter's transcript of the evidence appears in the record, the ground that the verdict is contrary to the evidence may be considered and determined to the same extent as on appeal from an order denying a new trial, providing a specification of particulars in which the evidence is insufficient to sustain the verdict is made in appellant's brief filed with the supreme court." This appeal was taken before the amendment above quoted became effective, and...