State v. Peters

Decision Date15 February 1927
Citation43 Idaho 564,253 P. 842
PartiesSTATE, Respondent, v. K. S. PETERS and FRANK G. LECHLEITER, Appellants
CourtIdaho Supreme Court

CRIMINAL LAW-ASSIGNMENTS NOT REVIEWABLE WITHOUT EXCEPTIONS TAKEN-EMBEZZLEMENT-CONTINUING OFFENSE-JOINT OFFENSE-DEMURRER TO INFORMATION INSUFFICIENT-INSTRUCTIONS-FRAUDULENT INTENT.

1. Assignments of error as to ruling on evidence and other matters at the trial, not being supported by exceptions taken, are not reviewable.

2. To charge a continuing offense of embezzlement, under C. S sec. 8451, it is not necessary for the information, in addition to the allegations in the nature of a continuando to allege that the series of acts was systematically instituted and carried on, or that the specific separate peculations cannot be identified; either or both of these conditions, if requisite to establish the acts as a continuing offense, being matter of evidence rather than of allegation in the information.

3. Evidence in embezzlement case held sufficient to sustain verdict of guilty on theory of continuing offense.

4. Verdict of guilty as charged in the information, though separate as to each defendant, and specifying the amount embezzled by each, held one of conviction of joint continuing embezzlement, charged in the information.

5. Special demurrer merely that information does not substantially conform to requirements of C. S., secs 8825-8827-one of which specifies matters with respect to which information must be certain-and not pointing out the particulars in which information is insufficient, is not sufficient as a demurrer for uncertainty.

6. Requested instruction that to warrant conviction the evidence must exclude every hypothesis save that of guilt held properly refused, both because omitting requirement that such other hypothesis be reasonable and because the evidence was not solely circumstantial.

7. Instructions merely singling out evidence as proper for jury to consider with all the other evidence, but without comment on its weight or effect, and from which no prejudice appears held no ground for complaint.

8. Where jury are otherwise fully and repeatedly advised that fraudulent intent must be proved beyond reasonable doubt, omis- sion of the element of fraudulent intent from instructions on specific phases of the case could not have been prejudicial.

9. Instruction in embezzlement does not tell jury they may infer criminal intent from mere acts of appropriation, where it requires as basis of inference of criminal intent proof beyond reasonable doubt that defendants knowingly converted the funds in the manner charged in the information, which charged the appropriation to have been fraudulent.

10. Words from instruction in embezzlement, that if the acts constituting the appropriation are knowingly or intentionally committed a criminal intent will be presumed, held in light of context of that instruction and another on intent, and, in view of instructions defining embezzlement and stating necessary proof, not to have been capable of misleading jury to understand that if taking of money was knowingly and intentionally done, though not done with the consciousness that no right to take it existed, the necessary intent would still be presumed.

11. Where jury were fully instructed on presumption of innocence and necessity of proof beyond a reasonable doubt, such matters were not required to be repeated in other instruction by being injected into various instructions given.

12. Where conversion is otherwise established, demand for return of money claimed to have been embezzled is not necessary.

APPEAL from the District Court of the Eleventh Judicial District, for Twin Falls County. Hon. Wm. A. Babcock, Judge.

Appellants were convicted of embezzlement. Affirmed.

Judgment of the trial court affirmed. Petition for rehearing denied.

Homer C. Mills and Roy L. Black, for Appellants.

The information was defective in that it did not substantially conform to the requirements of C. S., secs. 8825, 8826 and 8827. (7 Ency. Plead. & Prac. 447; People v. Cohen, 118 Cal. 74, 50 P. 20; Gates v. Lane, 44 Cal. 392; People v. Lanterman, 9 Cal.App. 674, 100 P. 720; State v. Smith, 25 Idaho 541, 138 P. 1107.)

The information charged more than one offense, contrary to C. S., sec. 8829. (State v. Bilboa, 33 Idaho 128, 190 P. 248; State v. Hall, 33 Idaho 135, 190 P. 251; State v. Cooper, 35 Idaho 73, 204 P. 204.)

The court erred in denying motion of defendants seeking to compel state to elect. (State v. Dawe, 31 Idaho 796, 177 P. 393.)

It is error to instruct a jury on the subject of embezzlement without incorporating the statutory terms. (C. S., sec. 8450; People v. Marshall, 112 Cal. 422, 44 P. 718; People v. Westlake, 124 Cal. 452, 57 P. 465; People v. Bush, 65 Cal. 129, 3 P. 590; People v. Wong Ah Ngow, 54 Cal. 151, 35 Am. Rep. 69.)

Instructions must not invade province of the jury. (State v. Dunlap, 40 Idaho 630, 235 P. 432.)

The evidence is insufficient to support the verdict. (Wyatt v. State (Okla. Cr.), 205 P. 195; People v. Mitchell, 74 Cal.App. 164, 240 P. 36; People v. Royce, 106 Cal. 173, 37 P. 630, 39 P. 524; People v. Ephriam (Cal. App.), 245 P. 769; State v. Jones, 25 Idaho 587, 138 P. 1116.)

Verdicts in this case should have been certain and responsive to the allegations in the information. (8 Cal. Jur. 402, sec. 431.)

A. H. Conner, Attorney General, and John W. Cramer, Assistant Attorney General, for Respondent.

An information which charges the accused with some crime known to the statute, committed on or about a specific date, and alleges that the unlawful act was done wilfully, unlawfully and feloniously, and indicates the particular crime charged, with the time, place, circumstances and conditions of the same, is sufficient. (State v. Steers, 12 Idaho 174, 85 P. 104; State v. Dawe, 31 Idaho 796, 177 P. 393.)

A distinct act of taking is not necessary to constitute embezzlement. (C. S., sec. 8456.)

Where one systematically institutes a continuous series of withholding of his principal's money, the series of acts constitutes but one offense, namely, embezzlement of the amount so withheld. (State v. Dawe, supra.)

Assignments of error involving the action of the court in overruling an objection to the introduction of any evidence and its rulings upon the introduction of certain oral and documentary evidence are not reviewable upon appeal when no exceptions thereto were taken and preserved in a bill of exceptions. (C. S., sec. 9006; State v. Brockman, 39 Idaho 468, 228 P. 250; State v. White, 33 Idaho 697, 197 P. 824; State v. Peck, 14 Idaho 712, 95 P. 515.)

It is not error for the court to refuse to give an instruction requested by the defendant when the same is fully covered by the instructions given. (State v. Hoagland, 39 Idaho 405, 228 P. 314; State v. Cosler, 39 Idaho 519, 228 P. 277; State v. Jurko, 42 Idaho 319, 245 P. 685; State v. Sayko, 37 Idaho 430, 216 P. 1036.)

The general rule is that the intent necessary to constitute the offense of embezzlement may be inferred from the knowing and intentional misappropriation of funds or property entrusted to the defendant's care. (United States v. Harper, 33 F. 471; Ford v. State, 46 Neb. 390, 64 N.W. 1082; State v. Merkel, 189 Mo. 315, 87 S.W. 1186; State v. Kortgaard, 62 Minn. 7, 64 N.W. 51; Hagood v. State, 5 Ga.App. 80, 62 S.E. 641.)

A charge on a hypothetical statement of facts, declaring the legal result thereof, or stating that, if the jury find the existence of certain facts, certain legal conclusions will follow, is not a charge on the facts, and does not invade the province of the jury. (State v. Jurko, supra; Randall's Inst. to Juries, 207, sec. 117; State v. Gohl, 46 Wash. 408, 90 P. 259.)

The word "wrongfully" when used in connection with the crime of embezzlement implies criminal intent. (Masters v. United States, 44 App. D. C. 350, Ann. Cas. 1916A, 1243.)

When errors are assigned, if they are not discussed in the brief and no authorities are cited in support of the assignments, they will neither be reviewed, considered nor discussed by the court. (State v. Brockman, 39 Idaho 468, 228 P. 250; State v. Lundhigh, 30 Idaho 365, 164 P. 690.)

Where defendants are charged jointly the general rule is that separate verdicts must be returned against each defendant. (State v. Cottrell, 12 Idaho 572, 86 P. 527.)

A general specification of error that the evidence is insufficient to sustain the verdict, without stating the particulars in which it is alleged to be insufficient, does not, under C. S., sec. 9068, require this court to consider such specifications. (State v. Johnson, 39 Idaho 440, 227 P. 1052; State v. Sayko, 37 Idaho 430, 216 P. 1036; State v. Maguire, 31 Idaho 24, 169 P. 175.)

A demand for the money alleged to have been embezzled is not necessary in this case. (20 C. J. 429, sec. 17.)

BRINCK, Commissioner. Varian, C., Budge, Givens and Taylor, JJ., concurring.

OPINION

BRINCK, Commissioner.

The appeal is from a judgment of conviction and order denying a motion for a new trial.

Defendants K. S. Peters and Frank G. Lechleiter were respectively general manager and secretary of the Mutual Building and Loan Association, operating as such at Twin Falls, Idaho. On October 1, 1919, they had made a contract with the association, which provided that for a period of ten years defendants should be such officers, and should devote all their time to the interests of the association and in the sale of its stock. It was provided in the contract that the association should pay the defendants a commission of two dollars per share on all shares of stock sold, and one per cent upon the amount of all loans made by the association. Defendant Lechleiter, as secretary, had charge of the books and...

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12 cases
  • State v. McClurg, 5622
    • United States
    • Idaho Supreme Court
    • June 25, 1931
    ... ... other reasonable hypothesis, etc. This is the gist ... of the court's statement in Instruction No. XXI. ( ... State v. Marcoe , 33 Idaho 284, 193 P. 80; State ... v. McLennan, supra ; State v. Dawn , 42 ... Idaho 210, 245 P. 74; State v. Peters , 43 Idaho 564, ... 253 P. 842. See, also, Bowen v ... [300 P. 913] ... State , 140 Ala. 65, 37 So. 233; State v ... Glass , 5 Ore. 73; Carlton v. People , 150 Ill ... 181, 41 Am. St. 346, 37 N.E. 244; State v. Yancey , ... 47 Idaho 1, 272 P. 495.) ... As to ... the ... ...
  • Barlow v. International Harvester Co.
    • United States
    • Idaho Supreme Court
    • June 11, 1974
    ...the element of fraudulent intent, was a question for the jury. See State v. Sedam, 62 Idaho 26, 107 P.2d 1065 (1940); State v. Peters, 43 Idaho 564, 253 P.2d 842 (1927). Furthermore, the truth of one accusation of crime does not relieve one from liability for the false imputation of another......
  • State v. Sedam
    • United States
    • Idaho Supreme Court
    • December 2, 1940
    ... ... voluntarily offered to and did produce it. Such ... constitutional rights may be waived and in the absence of ... objection no error is presented for our consideration ... ( State v. Gruber , 19 Idaho 692, 115 P. 1; State ... v. Peters , 43 Idaho 564, 253 P. 842; State v ... McClurg , 50 Idaho 762, 300 P. 898, 899; State v ... West , 42 Idaho 214, 217, 245 P. 85.) ... [62 ... Idaho 38] Appellant does not assign as error the failure or ... refusal of the trial court to discharge or stay the ... proceedings ... ...
  • State v. Segovia, 10266
    • United States
    • Idaho Supreme Court
    • May 1, 1970
    ...challenged in this manner. Failure to demur constitutes a waiver of any objection to the information on these grounds. State v. Peters, 43 Idaho 564, 253 P.842 (1927). The record fails to disclose any demurrer to the information, and therefore, this assignment of error is without Appellant ......
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