State v. Roland

• Citation: 83 P. 337,11 Idaho 490
• Parties: STATE v. ROLAND
• Decision Date: 28 November 1905
• Court: United States State Supreme Court of Idaho

83 P. 337

11 Idaho 490

STATE v. ROLAND

Supreme Court of Idaho

November 28, 1905

EMBEZZLEMENT WHAT CONSTITUTES-REMARKS OF JUDGE IN PRESENCE OF JURY-QUESTIONS OF FACT FOR THE JURY TO DETERMINE-INSTRUCTIONS OF THE COURT AND REFUSAL TO GIVE REQUESTS OF DEFENDANT.

1. Where it is shown that R. procured a horse from J., to be returned the next day, and rode him to a distant point, then sold him and converted the proceeds to his own use, he is guilty of embezzlement.

2. Where it is shown that remarks of the trial judge made in the presence of the jury in ruling on the admissibility of evidence were not prejudicial to the defendant, or did not indicate to the jury the feeling of the court as to the guilt or innocence of the defendant, no error is committed.

3. Where it is shown that the contract for possession of the alleged embezzled property is made in one county and it is disposed of in another county, and the court fully and fairly instructs the jury as to the law of the case, leaving that question entirely to them, it becomes a question of fact solely for their determination, and this court will not disturb their verdict, unless it is shown by the record that their verdict is not justified or supported by the evidence.

4. Where the court instructs fully and fairly on every issue involved in the prosecution, it is not error to refuse requests of defendant covering the same issues, but couched in different language.

(Syllabus by the court.)

APPEAL from the District Court of Nez Perce County. Honorable Edgar C. Steele, District Judge.

Defendant was convicted of the crime of embezzlement and appealed from the judgment and order overruling motion for a new trial. Judgment affirmed.

Affirmed.

George W. Tannahill and G. Orr McMinnimy, for Appellant.

The information is insufficient, as it should have alleged the facts. (People v. Scott, 74 Cal. 94, 15 P. 384; Duncan v. State (Tex. Cr. Rep.), 70 S.W. 543; State v. Swensen (Idaho), 81 P. 379; People v Murphy, 51 Cal. 376.) If a person in one county is intrusted by another with person property to be returned to the owner, and afterward takes it to another county and there embezzles it, he cannot be tried for the crime in the county where he received it unless he conceived the intention of committing the crime when he received it. (People v Stakem, 40 Cal. 599; State v. Vennum, 67 Kan. 868, 74 P. 268; Ex parte Cook (Cal.), 39 P. 16; State v. Bonner, 178 Mo. 424, 77 S.W. 463; People v. Scott, supra.) It is necessary to allege and prove the fiduciary relations existing between the defendant and the owner of the property embezzled. (7 Ency. of Pl. & Pr. 452; McCann v. United States, 2 Wyo. 274; Watson v. State, 70 Ala. 13, 45 Am. Rep. 70; People v. Johnson, 91 Cal. 265, 27 P. 663; Johnson v. State, 46 Tex. Cr. Rep. 415, 80 S.W. 621; People v. Dougherty, 143 Cal. 593, 77 P. 466; 12 Ency. of Law, 479, and cases there cited.)

J. J. Guheen, Attorney General, Edwin Snow and F. S. Wettach, for Respondent.

No indictment or information is insufficient, nor can the trial, judgment or other proceedings thereon be affected by reason of any defect or imperfection in matter or form which does not tend to the prejudice of a substantial right of the defendant upon its merits. (Pen. Code, sec. 5347; People v. Dinsmore, 102 Cal. 382, 36 P. 661; State v. Patterson, 116 Ind. 45, 10 N.E. 289, 18 N.E. 270; Stevenson v. State, 5 Baxt. (Tenn.) 683; State v. Burnett, 81 Mo. 119; State v. McDaniel, 94 Mo. 305, 7 S.W. 634.) It has been repeatedly held that an information may allege a certain day upon which a crime has been committed, and the proof may show an entirely different day, providing only the proof shows a day prior to the filing of the information and within the statute of limitations. (See State v. Rogers, 31 Mont. 1, 77 P. 293; State v. Dawkins, 32 S.C. 17, 10 S.E. 772; State v. Hutchinson, 111 Mo. 257, 20 S.W. 34.)

STOCKSLAGER, C. J. Ailshie, J., and Sullivan, J., concur.

OPINION

The facts are stated in the opinion.

STOCKSLAGER, C. J.

Appellant was charged with the crime of embezzlement in the district court of Nez Perce county; was convicted and sentenced to serve a term of one year and six months in the penitentiary of the state. This appeal is from the judgment, and from an order overruling a motion for a new trial. The information charges that on the fifteenth day of November, 1905, at the county of Nez Perce, in the state of Idaho the aforesaid William Roland, then and there being, committed the crime of embezzlement as follows: The said William Roland, on the fourteenth day of November, A. D. 1905, in the county of Nez Perce, in the state of Idaho was intrusted with one bay horse of the value of seventy dollars by Charles F. Jackson, said horse being then and there the property of said Charles F Jackson; that by the terms of the said trust said William Roland was to use said horse for his own benefit for a part of one day, and return said horse to Charles F. Jackson on the fifteenth day of November, A. D. 1904. That said William Roland did not return said horse to said Charles F. Jackson according to the terms of said trust, but did, on the fifteenth day of November, 1904, in said county of Nez Perce and state of Idaho willfully, unlawfully, feloniously and fraudulently convert said horse to his own use, and embezzle the same contrary to his said trust.

Counsel for appellant assign thirty errors occurring on the trial, but in their brief say that the case may be considered under three heads:

"1. The information failed to state facts sufficient to constitute an offense . . . . for the reason that the information failed to charge such fiduciary relation as required by the statute to constitute the crime of embezzlement. The information further failed to charge and allege facts sufficient to admit of proof of the alleged conversion of the horse in Latah county, and the admission of this evidence over the objection of defendant was indefinite and uncertain as to the date of the alleged commission of the offense, charging the offense to have been committed on November 15, 1905, and that the defendant was intrusted with the horse on November 15, 1904."

After the jury had returned a verdict of guilty, and prior to sentence, counsel for defendant filed a motion in arrest of judgment, which sets up that the information is insufficient upon which to base any judgment, and that such insufficiency consists in this: 1. That it does not appear therefrom the circumstances under which the alleged offense was committed, or the time and place, with sufficient certainty to advise the defendant of the nature of the offense, and the information is insufficient to give the court any jurisdiction of the offense, the person of the defendant, or the subject matter of the action; 2. That the information is ambiguous, unintelligible and uncertain, and that such uncertainty consists in this--that it does not appear therefrom whether or not the offense was committed in November, 1905, or November, 1904, and affirmatively appears therefrom that the offense is charged to have been committed on the fifteenth day of November, 1905; 3. That it does not appear therefrom, or from the evidence, that the offense was committed in Nez Perce county, state of Idaho; 4. That the information as a whole is insufficient upon which to base a judgment.

It is clearly apparent that a clerical error exists in the information wherein it is charged that the crime was committed on the fifteenth day of November, 1905. It is shown that on the fifteenth day of March, 1905, the information was filed, and alleges that prior thereto defendant had had a preliminary examination, and was held to answer in the district court to the charge of embezzlement.

Section 7687 of the Revised Statutes says: "No indictment is insufficient, nor can the trial, judgment, or other proceeding thereon, be affected by reason of any defect or imperfection in matter of form, which does not tend to the prejudice of a substantial right of the defendant upon its merits." What possible right of the defendant was in jeopardy by reason of the error in the information? He was informed by the information that he was charged with embezzling the property of the complaining witness, that he had disposed of such property in Moscow, and converted the proceeds to his own use without...