State v. Morris

• Decision Date: 28 March 1911
• Citation: 114 P. 476,58 Or. 397
• Parties: STATE v. MORRIS. [d]
• Court: Oregon Supreme Court

114 P. 476

58 Or. 397

STATE v. MORRIS. ^[d]

Supreme Court of Oregon

March 28, 1911

Appeal from Circuit Court, Multnomah County; C.U. Gantenbein, Judge.

W.C Morris was convicted of embezzlement, and appeals. Affirmed.

The charging part of the indictment in this case is as follows "The said W.H. Moore and W.C. Morris on the 15th day of December, A.D.1906, in the county of Multnomah and state of Oregon, were officers, agents, servants, and employés of the Oregon Trust & Savings Bank, an incorporation, and, being such officers, agents, servants, and employés, there did then and there come into their possession and be under their care by virtue of such employment one certain promissory note for the sum of ten thousand dollars ($10,000) of the value of ten thousand dollars ($10,000), one promissory note for the sum of twenty-five thousand dollars ($25,000) and of the value of twenty-five thousand dollars ($25,000), one promissory note for the sum of thirty-nine thousand one hundred dollars ($39,100) and of the value of thirty-nine thousand one hundred dollars ($39,100), one promissory note for the sum of nine hundred dollars ($900) and of the value of nine hundred dollars ($900), a more particular description of any of which promissory notes is to the grand jury unknown and divers gold and silver coins and currency bills, lawful money of the United States of America, bank notes, checks, drafts, bills of exchange, and valuable securities, a more particular description of which is to the grand jury unknown, of the value of fifty thousand dollars ($50,000), all of the personal property of the said incorporation and the said promissory notes, money, bank notes, checks, drafts, bills of exchange and valuable securities being so in their possession and under their care, the said W.H. Moore and W.C. Morris did then and there feloniously embezzle and fraudulently convert the same to their own use." From a conviction after a separate trial on a plea of not guilty, the defendant Morris appeals.

M.J Gordon and Sweek & Fouts, for appellant.

George J. Cameron, Dist. Atty., J.J. Fitzgerald, Deputy Dist. Atty and A.E. Clark, for the State.

BURNETT J. (after stating the facts as above).

The defendant assigns as error the failure of the court at the noon recess of May 5, 1910, and at the adjournment for that day, to admonish the jury not to converse about the case. He further objects that the court erred in permitting the jury to separate during the trial, that it abused its discretion in denying the appellant's request that the jury be kept together, and that it was at fault in telling the jury it would be permitted to read newspapers containing accounts of the trial. The record does not disclose that the defendant objected or excepted to the conduct of the court in either of these instances. It is discretionary with the court to allow the jury to separate. L.O.L. § 137. Moreover, counsel for the defendant could have directed the court's attention to its omission to admonish the jury. They could also have directed the court's attention to the other errors complained of and hereinbefore noted, but, no exception having been taken to the procedure of the court in those respects, we cannot consider them here. State v. Foot You, 24 Or. 61, 32 P. 1031, 33 P. 537.

It is also contended by the defendant that the court erred in permitting the state to show by the witness Ralston that he and the defendant were among the incorporators of the bank mentioned in the indictment, and gave their promissory notes for $25,000 each for stock which they subscribed. This testimony was admissible as part of the res gestae or history of the transaction tending to prove the essential allegation that the bank owned the note of the defendant in question; that note being one of those mentioned in the indictment as subsequently disclosed by the testimony. Ralston, while on the stand, identified a statement made on a Bradstreet's Commercial Agency blank which he testified was given to him by the defendant at the organization of the bank as a representation of defendant's financial condition, and which put the value of his assets above $53,000 on April 26, 1904. This statement was in the nature of a declaration of the defendant on the subject of his wealth, and was a circumstance which the jury had a right to consider for the purpose of throwing light on the value of the note in question. It was material to prove the value of the note, because embezzlement, the crime described in the indictment, can be predicated under our statute only of property which is the subject of larceny.

Further complaint is made that the court erred in denying the appellant's motion to compel the state to elect upon which of two charges of embezzlement--that of the notes or that of the money--it would rely for a conviction, inasmuch as the evidence from the view point of the defendant showed them to be separate and distinct. The defendant made a motion for that purpose at the close of the evidence on the part of the state. It is conceded that the alleged duplicity does not appear on the face of the indictment. It is possible to embezzle or steal many different subjects of larceny at the same time and under circumstances constituting but one offense. There was testimony disclosed by the record which the jury was authorized to consider tending to show that the notes described in the indictment and the cash amount of $50,000 were both taken from the bank December 15, 1904. Of course, the defendant's testimony tends to explain the $50,000 cash item as a mere matter of fictitious entries in the books for appearance sake involving no actual cash. There is sufficient dispute in the testimony to take the case to the jury on that point. But, aside from all that, to require the prosecution to elect in cases where the alleged duplicity appears only by the testimony is purely within the discretion of the trial court. Roberts v. People, 11 Colo. 213, 17 P. 637; Glover v. State, 109 Ind. 391, 10 N.E. 282; Smith v. State, 8 Lea (Tenn.) 386; People v. Shotwell, 27 Cal. 394.

Further, the verdict rendered in this case was as follows, omitting the caption: "We, the jury duly impaneled in the above-entitled court and cause, find the defendant W.C. Morris guilty as charged in the indictment and find the value of the property embezzled to be $75,000, in notes. [ Signed] J.F. Hill, Foreman." Manifestly the effect of this verdict finding him guilty of the embezzlement of $75,000 worth of notes would operate as an acquittal of the embezzlement of $50,000 in cash. At least, the defendant could plead the judgment rendered on this verdict in bar of a subsequent prosecution for embezzling this particular sum of $50,000. Conceding, without deciding, that the duplicity alleged appears in the evidence so that he stood charged with one crime of embezzlement of notes amounting to $75,000 and another embezzlement amounting to $50,000 in money, yet such duplicity was cured by the acquittal of the latter charge. State v. Miller, 24 Conn. 522; State v. Merrill, 44 N.H. 624.

It is also assigned as error that the court denied the appellant's motion to withdraw from the consideration of the jury all the evidence tending to show an embezzlement of the notes on the ground that the indictment states that "a more particular description of any of which promissory notes is to the grand jury unknown," whereas according to the claim of the defendant, it appeared from the evidence that the grand jury could readily have ascertained a more particular description of the notes. During the course of the trial, the state gave evidence in chief tending to show not only the amounts of the notes mentioned in the indictment, but also the names of the makers, and these names, not having been mentioned in the indictment, gave rise to this objection of the defendant. It is by no means certain from an examination of the record that the grand jury had sufficient knowledge to say on their oaths at the time of returning the indictment that they could give a better description. It is true that a more detailed description could have been given if the notes had been before them. They might have gone so far as to set out a copy of the notes to give the color of the paper,...