State v. Ring

• Decision Date: 13 January 1882
• Citation: 11 N.W. 233,29 Minn. 78
• Parties: STATE OF MINNESOTA v RING.
• Court: Minnesota Supreme Court

29 Minn. 78

11 N.W. 233

STATE OF MINNESOTAvRING.

Supreme Court of Minnesota.

Filed January 13, 1882.

Appeal from judgment of district court, county of Scott.

W. J. Hahn, Atty. Gen., for respondent.

L. M. Brown, for appellant.

DICKINSON, J.

The defendant was indicted for embezzlement. The indictment alleges the election of the defendant to the office of county treasurer of Scott county, at the general election in November, 1877, his qualifying and entering upon the discharge of his duties on the first day of March following, and that he continued in such office until the twenty-first day of June, 1880. The indictment then proceeds as follows: “That on the twenty-second day of June, 1880, one Herman Baumhager was, by the board of county commissioners of said county of Scott, duly appointed to the office of county treasurer of said county, and on the twenty-fifth day of June, 1880, duly qualified and entered upon the discharge of his duties as such county treasurer, and thereby became the successor in office to said John J. Ring, and all the time since the qualification of said Herman Baumhager, on the said twenty-fifth day of June, 1880, he has been and now is such county treasurer of said county and acting in that capacity.

In the subsequent part of the indictment the defendant is charged with embezzlement by refusing, upon demand made by Baumhager, as his successor in office, to pay over to him public moneys received by the defendant as county treasurer, and still remaining in his hands. The sufficiency of the indictment depends upon the fact as to whether it is sufficiently alleged that Baumhager was county treasurer, and the successor of the defendant in office. To refuse to deliver the money belonging in the county treasury to one not legally entitled to demand and to receive it, would not constitute the crime of embezzlement. The only ground upon which a doubt can rest as to the sufficiency of the indictment, in this respect, is that it does not allege that there was a vacancy in the office, and unless there was a vacancy the commissioners had not authority to make an appointment.

But the fact that the indictment does not allege a vacancy is not fatal, unless the instrument is to be construed as assuming to set forth the several steps or proceedings by which Baumhager became treasurer. It was not necessary to allege all such proceedings. The indictment is sufficient in that respect if it alleges the fact that Baumhager was such officer, and the successor in office of the defendant, and if those allegations are not qualified by particular averment of the proceedings by which he became such. If, however, it appears that the pleader has assumed to set forth the successive steps upon which the ultimate fact rests, the particular statement of facts controls the general allegation as to the result. Pinney v. Fridley, 9 Minn. 34, (Gil. 23.) We think the indictment sufficient, and that it is not to be construed as purporting to set forth all of the steps by which Baumhager became county treasurer.

It is apparent, from the simple allegation that Baumhager was duly appointed and qualified, that the pleader did not assume to set forth the facts which authorized such appointment, and the successive steps taken which constituted Baumhager county treasurer. Hence, from the want of an express allegation of a vacancy in the office, the inference is not to be drawn that there was not such vacancy, and the general allegation of appointment and qualification of Baumhager that he became the successor in office of the defendant, and that he has been, since the twenty-fifth day of January, 1880, such county treasurer, are unqualified, and have their full force as allegations of facts. If, as in the case of Pinney v. Fridley, the ultimate fact pleaded had depended upon a succession of numerous events, all of which save one had been studiously averred, the omission of that one would have been fatal for the reason above indicated-that the particular allegation of facts would modify and control the general conclusion.

In making up the jury for the trial of the case one Bergerman was called as a juror and challenged on the part of the state for actual bias. After examination upon voir dire, and particular interrogation by the court as to his knowledge of the English language, the court excluded the juror upon the ground of general disqualification. No challenge for that cause had been made. The defendant excepted. This was not error. The court was authorized to exclude the juror when it was made properly and sufficiently to appear that he had not such knowledge of the language as to enable him to understand the evidence, the argument of counsel, and the instructions of the court. It is the duty of the court to supervise, and within proper limits to control, the trial of causes before it, to the end that justice may be administered in reality as well as in form. The parties before the court might desire, from different motives, to accept an incompetent juror,-one entirely unacquainted with our language; but the court is not required to yield its assent to such a proceeding, or take part in such a trial. The parties have the right to challenge for general disqualification; but their neglect to avail themselves of that privilege does not prevent the court from inquiring as to the capacity of a juror to discharge intelligently the duties of his place. From the examination in this case the court was justified in its conclusion that the juror was disqualified.

The indictment alleges that, as county treasurer, defendant, during his term of office, received money of the county of an amount “exceeding the sum of $38,000,” and on the twenty-first day of June, 1880, had in his possession of said moneys the sum of $38,000. Then follow allegations which are claimed to charge an embezzlement of the sum of $18,680.42-part of the before-mentioned sum of $38,000. Upon the trial the state offered evidence tending to show that the defendant received, during his term of office and prior to June 21, 1880, the sum of $49,140. The defendant objected to such evidence, claiming that the state was concluded by the allegations of the indictment from showing a larger sum received than $38,000. The evidence was...