State v. Rother

• Decision Date: 20 April 1928
• Citation: State v. Rother, 56 N.D. 934, 219 N.W. 881 (N.D. 1928)
• Court: North Dakota Supreme Court

219 N.W. 881

56 N.D. 934

STATE OF NORTH DAKOTA, Respondent, v. F. C. ROTHER, Appellant

Supreme Court of North Dakota

April 20, 1928

Appeal from the District Court of Rolette County, Lowe, J.

The defendant was convicted of the crime of embezzlement, and appeals from the judgment of conviction and from an order denying a new trial.

Reversed.

Judgment set aside, and cause remanded.

Kehoe & Verret, F. T. Cuthbert, and J. C. Adamson, for appellant.

"The presence of one disqualified person upon the panel invalidates all indictments found. United States v Hammond, 2 Woods, 197; and the defendant is not bound in North Carolina, to show affirmatively that the disqualified juror was present and participated in the finding, inasmuch as the statute is absolute and unconditional, and the disqualification created thereby depends upon the status of the juror in this respect, and that only; and to take advantage of such incompetency, it is incumbent on the accused merely to show that fact by proof. It will be presumed that the disqualified juror was present, and acted with his fellows. State v. Smith, 80 N.C. 410; State v. Lyles, 77 N.C. 496. . . . But an unqualified opinion of the defendant's guilt disqualifies, even though formed in finding a previous indictment, since quashed, for the same offense. State v Gillick, 7 Iowa 287." Com. v. Green, 126 Pa. State, 531 12 Am. St. Rep. 894.

"In no case can an indictment be aided by imagination or presumption. The presumptions are all in favor of innocence, and if the facts stated may or may not constitute a crime, the presumption is that no crime was committed." People v. Terrill (Cal.) 59 P. 836.

"Something more than mere physical access or opportunity to approach or take property is intended by the statute in order to make the appropriation embezzlement." State v. Ugland, 48 N.D. 841, 187 N.W. 237.

"An indictment for embezzlement is sufficient if it follows the words of the statute, said the court in a case cited, but this is only so where the words used in this statute are sufficient to describe every fact essential to constitute the offense; otherwise it is not sufficient." State v. Ives (La.) Ann. Cas. 1912C, 901.

"The fiduciary relation of the accused, which is the element distinguishing embezzlement from larceny should be clearly stated." 9 R. C. L. 1288(31).

George F. Shafer, Attorney General, L. L. Butterwick, Assistant Attorney General, and Charles H. Houska, State's Attorney, for respondent.

"The grounds assigned for quashing, if not established by the record, must be sustained by distinct evidence introduced or offered by accused, accused being entitled to introduce such evidence if his motion is sufficient in law and having the burden of proof." 31 C. J. 813.

"Where a statute inhibits and makes it a crime for any person to commit certain acts, an information which charges, in the language of the statute, that a person has committed the acts so inhibited, is sufficient." State v. Mott, 53 N.D. 222, 205 N.W. 234.

"If an act of a particular description is made criminal, nothing further need be alleged in the indictment than the doing of the specified act. Under such circumstances, it is sufficient to follow the language of the statute in describing the act charged." State v. Hoffman, 112 N.W. 103.

"Where there is substantial evidence in support of the charges, the question whether its effect is to overcome any reasonable doubt of guilt is a question for the jury, and not for the court." Pierce v. United States, 252 U.S. 239, 40 S.Ct. 205, 64 L.Ed. 542.

NUESSLE, Ch. J., and CHRISTIANSON, BIRDZELL, and BURKE, JJ., and LEMBKE, Dist. J., concur. BURR, JJ., did not participate; Honorable F. T. LEMBKE, Judge of the Sixth Judicial District, sitting in his stead.

OPINION

PER CURIAM.

The defendant was convicted of the crime of embezzlement and appeals from the judgment of conviction and from the order denying a motion for a new trial. The indictment was returned by the same grand jury which returned the indictment in State v. Rother, ante, 875, 219 N.W. 574; the same motion was made to set aside the indictment in this case as was made in the other, the same proceedings had thereon and the same ruling made by the trial court.

It follows from what has been said in State v. Rother, supra, that the judgment of conviction must be set aside, and the cause remanded for further proceedings conformable to law.

It is so ordered.

NUESSLE, Ch. J., and CHRISTIANSON, BIRDZELL, and BURKE, JJ., and LEMBKE, Dist. J., concur.

BURR, J., being disqualified, did not participate; Honorable F. T. LEMBKE, Judge of the Sixth Judicial District, sitting in his stead.

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