State v. New

• Citation: 22 Minn. 76
• Parties: STATE OF MINNESOTA <I>vs.</I> THOMAS NEW.
• Decision Date: 05 August 1875
• Court: Supreme Court of Minnesota (US)

Page 76

22 Minn. 76

STATE OF MINNESOTAvs.

THOMAS NEW.

Supreme Court of Minnesota.

August 5, 1875.

The defendant was tried in the district court for Hennepin county, before Vanderburgh, J., upon the following indictment:

"Thomas New is accused by the grand jury of the county of Hennepin, in the state of Minnesota, by this indictment, of the crime of larceny, committed as follows: The said Thomas New, not being an apprentice, nor under the age of sixteen years, on the 20th day of August, A. D. 1873, at the city of Minneapolis, in said Hennepin county, then and there being a servant of the American Express Company, a copartnership consisting of various persons, the names of whom are to the grand jury unknown, did wilfully, unlawfully, feloniously and fraudulently embezzle and convert to his own use, without the consent of his employers, the said express company, divers and sundry genuine and current

legal-tender treasury notes, of different denominations, issued by the treasury department of the United States, and divers and sundry genuine current bank notes, of different denominations, issued by divers and sundry national banks, organized under the laws of the United States, which said treasury notes and bank notes amounted in all to the sum of forty dollars, but a more particular description of which said treasury notes and bank notes, or either or any of them, or the number thereof, is to the grand jury unknown, all of the same being then and there the property and moneys of the said express company, and all of which had come into the possession of, and were then and there in the possession of, and under the care of, said Thomas New, by virtue of his said employment for said company, when so embezzled as aforesaid; whereby the said Thomas New then and there, feloniously, wilfully, unlawfully, and with force of arms, did commit the crime of larceny as aforesaid, contrary to the statute," etc.

At the trial it appeared that the defendant was employed by the express company as a messenger on the railway train between Minneapolis, in Hennepin county, and St. Paul, in the adjoining county of Ramsey; that on July 25, 1873, a money package containing $40.00, addressed to one Guisenberg, at Chicago, was received at the Minneapolis office of the express company, and was by the company's agent delivered to defendant, to be by him carried to St. Paul, and there delivered to one Truesdell, the company's messenger on the line from St. Paul to Milwaukee; that defendant had not delivered the package to Truesdell, and that he had confessed to the agent of the company that he had taken the package and used the money. There was also evidence that a package containing the same amount was subsequently received at the Chicago office of the company.

The defendant requested the following instructions, among others:

2. If the jury find from the evidence that the conversion

of the $40.00 was not committed in Hennepin county, beyond a reasonable doubt, the defendant must be found not guilty; and it is not sufficient that it was received in Hennepin county, but the proof must show the conversion in Hennepin county; which was refused, and defendant excepted.

6. A servant of a person, to whom money is given to convey to a given point, place, or person, is not guilty of conversion by merely delaying his delivery, but a demand by the owner or consignee must be made, and a fraudulent refusal to pay or deliver the money, before it can be made a conversion in law. This instruction was given, and the court further charged the jury "that if the jury find that there was an actual embezzlement and fraudulent appropriation of...