State v. Monahan

• Decision Date: 05 October 1926
• Docket Number: 2725.
• Citation: 249 P. 566,50 Nev. 27
• Parties: STATE v. MONAHAN.
• Court: Nevada Supreme Court

249 P. 566

50 Nev. 27

STATE v. MONAHAN.

No. 2725.

Supreme Court of Nevada

October 5, 1926

Syllabus by Editorial Staff.

Any prejudice resulting to defendant because after jury had been accepted and sworn district attorney was permitted to indorse on information names of witnesses known to district attorney before trial, in violation of 3 Rev. Laws, p. 3399, § 2 held cured by granting defendant's motion for continuance to prepare to meet testimony of additional witnesses.

Under 3 Rev. Laws, p. 3399, § 2, indorsement of names of witnesses on information is largely a matter of discretion with court and, in absence of showing of abuse, or that some substantial injury had resulted to accused, an order permitting such indorsement even after trial has commenced does not constitute of itself reversible error.

Rev Laws, § 6653, providing that conversion by bailee, agent, etc., of money, goods, or property intrusted to his possession shall constitute embezzlement, is limited to cases in which there is a relation of trust and confidence.

Rev. Laws, § 6653, providing that any "agent," etc., shall be guilty of embezzlement who converts the money, goods, or property of another to his own use, includes brokers, though they are not named therein.

Transaction in which broker was ordered to buy stock, and received part payment, and subsequently payment in full, but never delivered the stock, but gave various and conflicting excuses for his failure to do so, held not to create relation of "debtor and creditor," but to constitute "embezzlement" of the money within Rev. Laws, § 6653.

Where a deliberate diversion by a broker of money transmitted to him by his principal is shown, it requires but slight evidence to satisfy jurors as to existence of felonious or criminal intent.

Where prosecution in trial of broker for embezzlement made a prima facie case, defendant was required to adduce evidence in denial or explanation of incriminating circumstances.

In prosecution of broker for embezzlement, admitting evidence of financial circumstances of defendant and of similar transactions with other customers by him at or immediately before commission of the offense held not erroneous, where jury were fully instructed as to purpose for which evidence could be considered.

Appeal from District Court, Nye County; Frank T. Dunn, Judge.

J. E. Monahan was convicted of embezzlement, and he appeals. Affirmed.

McCarran & Mashburn, of Reno, and William Forman, of Tonopah, for appellant.

M. A. Diskin, Atty. Gen., and Joseph T. Murphy, Dist. Atty., of Tonopah, for the State.

SANDERS J.

The defendant, a mining stock broker, was convicted for embezzling $600, the money of one H. W. Carden. He appeals from the judgment of conviction and from an order denying his motion for a new trial.

The information upon which the defendant was tried reads as follows:

"That he, the said J. E. Monahan, while engaged in the business of and acting as a stockbroker in the town of Tonopah, Nye county, Nev., had placed into his possession, and was intrusted with, property and money having a greater value than $50, to wit, $200 currency, lawful money of the United States, together with two bank checks drawn on the Lander County Bank, of Austin, Nev., each of the said checks being made payable to the said J. E. Monahan in the sum of $200, and signed by one H. W. Carden; the said H. W.

Carden having on deposit with the said bank the said sums of money at the said time, and the said checks were properly indorsed. The said checks were in due course of business deposited by the said J. E. Monahan with the Nevada First National Bank of Tonopah, Nev., to the credit of the account of the said J. E. Monahan, and in due course payment made thereon to the said Nevada First National Bank by the Lander County Bank, upon which the said checks were drawn. The total value of the said lawful money of the United States, together with the said checks, was $600.

The aforesaid money and checks were placed in his, the said J. E. Monahan's, possession, and intrusted to him by H. W. Carden of Round Mountain, Nye county, Nev., the lawful and rightful owner of the said checks and money, for the sole purpose of purchasing 5,000 shares of White Caps Mining Company stock, which stock was to be purchased at the market price of 12 cents per share, and that he the said J. E. Monahan was intrusted with the aforedescribed money and checks of a value of $50, to wit, $600 for the sole and only purpose of purchasing the said mining stock and turning the said stock over to him, the said H. W. Carden, in the regular course of business, as soon as he, the said J. E. Monahan, acting then and there as a stockbroker, should purchase the said stock; and that he, the said J. E. Monahan, was not intrusted with the said property and money aforedescribed for any other purpose whatsoever, and that he, the said J. E. Monahan, did represent to him, the said H. W. Carden, that he had purchased the said stock, when in truth and in fact he, the said J. E. Monahan, knew that he had not purchased the said stock, and that he, the said J. E. Monahan, did convert the said money and checks in the sum of $600 to his own use and benefit, and appropriate the same with an intent to steal the same and to defraud the lawful and rightful owner, H. W. Carden, thereof, and did dispose of the same for his, the said J. E. Monahan's, own use and benefit."

The undisputed facts, omitting details, are as follows:

At the time of the commission of the alleged offense the defendant was engaged in a general brokerage business in Tonopah, Nye county, Nev., under the name of the Divide Brokerage Company. On the 9th day of June, 1925, H. W. Carden, who lived at Round Mountain in said county, went to the defendant's place of business, and gave to the defendant an order in writing to buy 5,000 shares of the capital stock of the White Caps Mining Company at 12 cents per share. The order is as follows:

"6/9-25. Buy 5,000 W Caps @ 12 B 60. H. W. Carden." At the request of the defendant, Carden gave him the sum of $300 to use on the purchase of said stock, and the defendant, agreeing to make the purchase, received the money for that specific purpose. Carden subsequently visited the place of business of the defendant, and upon inquiry was told by the defendant that the 5,000 shares of stock had been purchased in San Francisco. The stock of the White Caps Mining Company was a listed stock on the San Francisco mining stock exchange, and was actively dealt in on the 9th day of June, 1925, at 12 cents per share. On the 22d day of June, 1925, H. W. Carden again visited the place of business of the defendant, and asked that, if he were to pay the balance in full upon the stock, would the defendant deliver the stock to him immediately? The defendant replied, "Absolutely," just as quickly as it could be shipped from Frisco. Thereupon Carden, relying upon the defendant's representation that he had purchased the stock, gave to the defendant $300 to pay for the stock in full, with the understanding that the stock would be delivered without delay, and the defendant gave Carden this receipt:

"6/22, 1925. Received from H. W. Carden three hundred dollars in full bot 5,000 W Caps @ 12¢ stock due you $300.00.

J. E. Monahan."

Thereafter the complainant Carden made frequent demands upon the defendant for the stock, but each demand was met with various and conflicting excuses. On the 9th day of July, 1925, Carden visited the office of the defendant, and pressed him for the delivery of the stock. The defendant represented that the stock would be mailed to complainant at Round Mountain on the next Monday, and that it would be no later than the following Thursday in arriving there. Carden said, "That will do," and left the office in a disgruntled frame of mind. Shortly thereafter the defendant called Carden back into his office, and told him that he had borrowed 1,500 shares of White Caps stock which he could have upon receipting therefor. Carden accepted the 1,500 shares and gave this receipt:

"7-9-1925. Received from J. E. Monahan fifteen hundred shrs dollars Wh Caps Bal due HWC 3500 fully paid. H. W. Carden."

On the same day, to wit, the 9th of July, 1925, Carden went to the office of Joseph T. Murphy district attorney of Nye county, and laid before him the entire transaction between him and the defendant, and on the advice of Mr. Murphy the following letter was addressed to the defendant:

"Tonopah, Nev., July 9, 1925.

Mr. J. E. Monahan, Tonopah, Nev.-Dear Sir: You are hereby notified that the undersigned demands the immediate surrender of thirty-five hundred (3,500) shares of White Caps Mining Company stock, due the undersigned by you, as evidenced by your receipt of June 22, 1925. And you are hereby notified that between this date and the date of the surrender of the thirty-five hundred (3,500) shares of stock, the undersigned will hold you liable for the highest market price which the stock reaches in the meantime. H. W. Carden."

Carden again visited the office of Mr. Murphy, and a criminal complaint was filed in the justice court of Tonopah township charging the defendant with the embezzlement of $600. The date of the filing of the complaint is not given, but it appears affirmatively from the transcript that such proceedings were had thereon as resulted in the filing of the foregoing information in the court below on the 1st day of August, 1925, upon which was indorsed the names of three witnesses. The case was set for trial on the 14th day of October, 1925.

Upon the trial the prosecution, over the defendant's objections, was permitted to adduce evidence of the financial circumstances of the defendant and evidence of similar...