State v. McFarlin

• Citation: 172 P. 371,41 Nev. 486
• Decision Date: 30 April 1918
• Docket Number: 2291.
• Parties: STATE v. McFARLIN.
• Court: Supreme Court of Nevada

172 P. 371

41 Nev. 486

STATE v. McFARLIN.

No. 2291.

Supreme Court of Nevada

April 30, 1918

Appeal from District Court, Churchill County; T. C. Hart, Judge.

George B. McFarlin was convicted of embezzlement, and from the judgment, and denial of his motion for new trial, he appeals. Reversed, and new trial granted.

See also, 167 P. 1011.

James M. Frame and Howard Browne, both of Reno, for appellant.

Geo. B Thatcher, Atty. Gen., and G. J. Kenny, Dist. Atty., of Fallon, for the State.

COLEMAN J.

Appellant was convicted in the district court upon the charge of embezzlement, and appeals from the judgment, and from the order denying a motion for a new trial.

It was urged in the trial court that the information does not charge an offense, and the same objection is presented for our consideration. It is said that the information is bad because (1) there is no allegation that the defendant was authorized to receive the money; (2) there is no allegation that the defendant was intrusted with the money by virtue of his employment; and (3) there is no allegation that defendant was, by virtue of his employment, charged with the duty of receiving the money. To sustain these contentions our attention is called to Ex parte Ricord, 11 Nev. 287; Ricord v. C. P. R. R. Co., 15 Nev. 167; People v. Bailey, 23 Cal. 577; People v. Shearer, 143 Cal. 66, 76 P. 813.

Without undertaking to specifically point out wherein the cases mentioned are not in point, we think it sufficient to say that they were instituted under statutes unlike our present statute. Embezzlement is a statutory crime, and all that is necessary in charging the offense is to follow the statute. The statute under which the case was instituted is section 6653, Revised Laws, and that portion which is of importance in considering the objections urged reads as follows:

"Any agent, manager or clerk of any *** corporation *** with whom any money *** shall have been deposited or intrusted, who shall use or appropriate such money *** or any part thereof in any manner or for any other purpose than that for which the same was deposited or intrusted, shall be guilty of embezzlement. ***"

Omitting the formal parts of the information in question, it charges that the defendant-

"while then and there an employé of the county of Churchill, a political subdivision of the state of Nevada, to wit, the duly appointed and acting manager of the Churchill County Telephone & Telegraph System, which said system being then and there exclusively owned and operated by the said county of Churchill, state of Nevada, and then and there, by virtue of said employment, as manager aforesaid, there came into the possession and under the control of said defendant, for transmission to the county treasurer of the said county of Churchill, state of Nevada, the sum of $556.02, lawful money of the United States, of the personal property of the said county of Churchill, state of Nevada, said sum, $556.02, lawful money, being public money received by said defendant for the said county of Churchill, state of Nevada, during the month of March, A. D. 1916, while said public money and personal property were so in his possession and under his control by virtue of said employment as aforesaid, then and there, to wit, on the 31st day of March, A. D., 1916, or thereabout, said defendant did willfully, feloniously, and unlawfully use, embezzle, and convert said sum of public money and personal property, received by him as aforesaid, for his own private purposes and for a purpose other than one duly authorized by law."

It will be seen that the information charges that the defendant was manager of the telephone system; that as such manager there came into his possession and under his control certain money, the property of Churchill county; that it came into his hands for a specific purpose, viz. for transmission to the county treasurer; that while the money was in his possession for that purpose he feloniously and unlawfully converted it to his own use. These allegations seem to fully comply with the requirements of the statute. We think that the information is good.

It is also urged that the trial court erred in overruling an objection to certain pages in the books of account of the telephone system, offered in evidence by the state. This objection should have been sustained, and the failure to do so was prejudicial to the defendant. The defendant was not the bookkeeper, did not understand bookkeeping, was not familiar with the books, and his attention was never directed to the items on the pages introduced in evidence. It is a general rule that where an employé of a concern is on trial for embezzlement neither the books, nor portions of the books of the concern, which are not in the defendant's handwriting, are legal evidence against him, unless there be testimony tending to show that his attention was called to them and that he made some admission in regard to the portion offered in evidence. Lang v. State, 97 Ala. 46, 12 So. 183. In People v. Burnham, 119 A.D. 302, 104 N.Y.S. 725, which was a case similar to the one at bar, it was said:

"There was also evidence admitted, against the objection and exception of the defendant, in relation to the entry in the books of the corporation respecting this payment, which was incompetent as against the defendant. He was not shown to have had anything to do with these books, or any knowledge of their contents, or any connection with the entries. The books of a corporation are not evidence as against an officer of the corporation in a criminal prosecution against him."

In People v. Blackman, 127 Cal. 248, 59 P. 573, where this identical question was before the court, it was said:

"A great many entries made in a great many books were offered and received, over the objection of defendant. It appeared that some of the entries were in the handwriting of defendant, and others were not. They were introduced, not only to show the receipt of money by the defendant, but also to show forced balances, and thereby to raise the presumption of guilt. The bookkeeper was not sworn as a witness, but they were merely shown to be books kept by the company. Bolton, the bookkeeper, at about the time the shortage was discovered, had committed suicide. The position of the learned judge of the trial court was stated by him: 'This is one of the books of the company. He is charged by the by-laws and the custom of the company with the keeping of the books. This book was presumably in his custody and under his control. I don't care who kept it. If there is anything wrong about it, that is for the defense.' As a matter of course, this view is not insisted upon here. The presumption of innocence would overcome all the presumptions of knowledge and control, if they existed; and it was for the prosecution to show that the defendant was responsible for the condition of the books, and in a criminal proceeding it is not enough that it was his duty to know of their contents, and that in a civil action they would be competent evidence against him on that ground. He cannot be held for the crime of embezzlement because he has negligently performed his duty as secretary of the corporation, but such consequence might result under the rulings of the court. Most of the books were in the handwriting of Bolton. It was not shown that defendant examined them to see that they were correct, or, save by the presumption mentioned, that he knew anything about them."

See, also, Rudd v. Robinson, 126 N.Y. 113, 26 N.E. 1046, 12 L. R. A. 473, 22 Am. St. Rep. 816; State v. Carmean, 126 Iowa, 291, 102 N.W. 97, 106 Am. St. Rep. 352; People v. Rowland, 12 Cal.App. 6, 106 P. 428.

It is next contended that the trial court should have excluded the evidence offered relative to the defendant's playing slot machines. The testimony shows no gambling on the part of the defendant, other than by playing slot machines for "bingles," which were good in trade only, and the extent to which he is shown to have indulged in the practice was not extensive. Under the circumstances, we think the objection to this testimony should have been sustained.

Evidence of other shortages than that charged in the information was admitted upon the trial of this case, and in instructing the jury, before the case was submitted, the court gave, at the request of counsel for the defendant, the following instruction:

"The particular offense charged against the defendant is an alleged shortage occurring on or about the 31st day of March, 1916, and it is for that offense, and for that offense alone, that the defendant is on trial. While the testimony of other alleged shortages in the year 1916 have been admitted in evidence, it is only proper for you to consider such testimony in so far as the same tends to throw light upon the transactions of the month of March, 1916, as alleged in the information, and before you can convict the defendant of the offense charged in the information you must find from the evidence beyond a reasonable doubt that the offense alleged in the information was committed on or about the 31st day of March, 1916."

Some hours after the case had been submitted, the jury returned into court and made it clear that they did not fully understand the purposes for which they might consider the evidence of other shortages than that charged in the information. After some discussion, the court instructed the jury orally as follows:

"Then, gentlemen of the jury, I will further instruct you, as to the instructions already given, that it is proper for you to consider all of the testimony, certainly, which is before you, and that you may and should take into consideration all of the testimnoy as submitted, whether it be concerning

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