State v. McCullough
| Decision Date | 06 November 1923 |
| Docket Number | No. 23638.,23638. |
| Citation | 157 Minn. 69,195 N.W. 764 |
| Parties | STATE v. McCULLOUGH. |
| Court | Minnesota Supreme Court |
Case Certified from District Court, Swift County; Harold Baker, Judge.
F. J. McCullough was charged with larceny, as defined in Gen. St. 1913, § 8870, subd. 2. A demurrer to the indictment was disallowed, and questions certified. Reversed and remanded.
An indictment, under subdivision 2, § 8870, Gen. St. 1913, which fails to show the existence of a fiduciary relation of some sort between the accused and the owner of the property unlawfully appropriated, by virtue of which the accused was rightfully in possession or control of the property, is defective.
An indictment, under Gen. St. 1913, § 8870, subd. 2, defining as larceny the crime previously known as embezzlement, need not allege to whose use the property was appropriated, if it clearly appears that it was appropriated to the use of another than the true owner with intent to deprive him of his property. C. L. Hilton, Atty. Gen., G. A. Youngquist, Asst. Atty. Gen., and J. A. Lee, Co. Atty., of Benson, for the State.
E. S. Cary, of Minneapolis, for defendant.
The defendant was indicted for the crime of larceny as defined in the second subdivision of section 8870, G. S. 1913-the crime known as embezzlement under prior statutes.
The indictment charges that defendant was an officer of the Danvers Farmers' State Bank, that as such officer he had in his possession, custody and control eight government bonds (described in detail), which bonds were the personal property of one Andrew Lye, and that he willfully and feloniously appropriated said bonds and sold them without the knowledge or consent of said Lye, with intent to deprive and defraud said Lye of his property.
Defendant demurred to the indictment. The trial court disallowed the demurrer, and then, at the request of defendant, certified to this court the questions raised thereunder.
In State v. Kortgaard, 62 Minn. 7, 64 N. W. 51, it is said:
‘The offense differs from common-law larceny, in that the property must have already been in the lawful possession or control of the accused under or by virtue of some employment, trust, or agency under and with the consent of the owner.’
In State v. Holmes, 65 Minn. 230, 68 N. W. 11, it is said:
‘An element that enters into the definition of embezzlement is the fiduciary and confidential relation between the owner and the custodian of the property.’
In State v. Holton, 88 Minn. 171, 92 N. W. 541, an indictment, attempting to charge the defendant with larceny as a bailee under the statute cited, was held fatally defective because it--
‘failed to allege any facts from which the conclusion would follow that the money which he appropriated to his own use was in his possession as a bailee.’
The existence of a fiduciary relation of some sort, between the accused and the owner of the property wrongfully appropriated, by virtue of which the accused was rightfully in possession or control of the property, is an essential element of the offense, and an indictment which fails to show the existence of such facts is fatally defective. In addition to the above cases see State v....
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State v. Ruznak
...and that by virtue of such relation the accused was intrusted by the party defrauded with the property embezzled." In State v. McCullough, 157 Minn. 69, 195 N. W. 764, the Supreme Court of Minnesota phrases the rule as follows: "The existence of a fiduciary relation of some sort, between th......
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State v. Peterson
...but tending to obstruct the administration of justice." 3. Defendant attacks the sufficiency of the indictment and cites State v. McCullough, 195 N. W. 764, 157 Minn. 69, in support of his claim that an indictment under subdivision 2, § 10358, G. S. 1923, must allege a fiduciary relation be......
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