State v. Salverson
| Decision Date | 27 June 1902 |
| Docket Number | 13,075 - (17) |
| Citation | 91 N.W. 1,87 Minn. 40 |
| Parties | STATE v. B. K. SALVERSON |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for Swift county, Qvale, J., denying a motion for a new trial. Affirmed.
Grand Larceny -- Evidence.
In a criminal prosecution of a bank cashier on the charge of grand larceny in the first degree, based upon his alleged wrongful and unlawful appropriation of the sum of $925, funds of the bank, the evidence is examined, and held sufficient to sustain a conviction.
Books of Account.
State v. Clements, 82 Minn. 434, effect that, where books of account material to an issue on trial, are properly received in evidence, and before the court and parties subject to inspection, and requiring an examination for details of information contained therein, it is proper to receive balances and summaries thereof from an expert witness, who has made the same, followed and applied.
Written Instrument -- Parol Evidence.
Whether a sufficient foundation has been laid for the introduction of parol evidence of the existence and contents of a written document rests in the sound discretion of the trial court and its decision permitting such evidence is reviewable on appeal only in case of an abuse of discretion.
Jury -- Dispersion at Adjournment.
It was not reversible error in this case for the trial court, over defendant's objection, to permit the jury to separate for the period of four hours immediately after the taking of evidence had been concluded and before the case was argued and submitted to them by counsel, it appearing that the jury had been permitted to separate at other temporary adjournments of the court during the trial, and it not appearing that defendant was in any way injuriously affected thereby. The matter was within the discretion of the court.
Intoxicating Liquor.
The use of intoxicating liquor by a juror while engaged in the trial of an action is highly reprehensible, and when his indulgence is to such an extent as to impair his faculties, and render him incapable of comprehending or appreciating the proceedings in court, or unfit him for an intelligent, fair and impartial consideration of the case, when not participated in, assented to, or waived by the parties, constitutes such misconduct as vitiates and invalidates the verdict, unless it be made to appear clearly that no prejudice resulted therefrom.
Intoxication of Juror.
The showing that a juror was intoxicated on the trial of an action to the extent above stated raises a presumption of prejudice, and the burden is upon the prevailing party to overcome and rebut it; but whether the presumption is overcome in any case is very largely a question for the trial court to determine, requiring a clear showing to justify a reversal by the supreme court.
New Trial -- Knowledge of Misconduct.
If the party against whom a verdict is returned be instrumental in causing the intoxication of the juror, or be aware of the fact before the verdict, and fails to bring it to the attention of the trial court, he waives the misconduct. An essential of an application for a new trial based upon this ground is an affirmative showing that the moving party had no notice of the misconduct before verdict.
New Trial -- Discretion of Court.
Whether a new trial should be granted for misconduct of a juror of this nature rests in the sound judicial discretion of the trial judge, and his determination thereof is not reviewable except in a clear case of abuse of discretion.
Assignments of Error.
Various assignments of error considered, and held to present no reversible error.
Jas. A. Peterson, John O. Haugland and C. L. Kane, for appellant.
W. B. Douglas, Attorney General, and F. P. Olney, County Attorney, for the State.
Defendant was indicted, tried and convicted in the district court of Swift county of the crime of grand larceny in the first degree, and appeals from an order denying his motion for a new trial.
It appears from the record before us that defendant was the cashier of the Citizens' Bank of Appleton, this state, a corporation created for the purpose of doing a general banking business, with full charge and control of its affairs. On January 16, 1899, the bank was the owner of eighty acres of land, and defendant, as its cashier and representative, sold the same to one Avelsgaard, receiving in payment therefor a deed to the bank of forty acres of other land and Avelsgaard's promissory note for the sum of $925, payable to the bank. Defendant falsely entered this note and the transaction evidenced by it upon the books of the bank as a loan of the amount of money represented thereby, and the contention of the state is that he then wrongfully took from the funds of the bank that amount, and unlawfully appropriated it to his own use. The entry so made by defendant in the books was subsequently carried thereon as a loan, and was at no time corrected, or made to show the true conditions. A large number of errors are assigned; the greater proportion of which, however, require no special mention, and we shall refer to some of the main questions only.
1. Some time after Avelsgaard had made and delivered his note to the bank in payment for the land sold him by defendant, he paid the same, and it was returned to him. It was not produced at the trial, and the court admitted parol proof of its existence and contents; and of this defendant complains because, and for the reason, as urged by his counsel, that no proper foundation was laid. Avelsgaard testified that he had made diligent search for the note; that he had looked carefully in all places at his home in which he kept papers of the kind, but was unable to find it. He further testified that he thought the note was still at his home somewhere; just where he could not tell. The examination touching this particular question was somewhat extended by both parties, the court finally ruling that a foundation was sufficiently laid, and admitted the testimony as to the contents of the note. The question whether a proper foundation was laid for the admission of this evidence was one resting very largely in the sound discretion of the trial court, and, it not appearing to have been abused, there was no error in the admission of the evidence. Phoenix Ins. Co. v. Taylor, 5 Minn. 393 (492); Molm v. Barton, 27 Minn. 530, 8 N.W. 765. And, moreover, when the defendant was called as a witness in his own behalf, he admitted the execution and delivery of the note, and undertook to explain his conduct in reference to it and the entries made in the books of the bank. So it became a conceded fact in the case that the note was given as claimed by the state, and its precise terms were not material upon any question in issue.
2. The books of the bank were offered in evidence, and Public Examiner Pope was permitted, over defendant's objection, to testify as a witness on the part of the state, the object and purpose of keeping such books, and that they were kept in accordance with regulations prescribed by him for all the banks of the state. He was also permitted to testify, as an expert, the result of his computations and summaries from the books, and that they did not disclose that the sum of $925, which defendant entered therein as a loan, and which appeared therefrom to have been taken from the funds of the bank, was ever returned. There was no error in the rulings of the court on this subject. It was said in State v. Clements, 82 Minn. 434, 85 N.W. 229, -- a case involving a very similar question, -- that where books of account, material to an issue on trial, are properly received in evidence, and being in court, open to inspection by all parties, and which require an examination for details of information contained therein, it is proper to receive balances or summaries from an expert witness, who has made the same, upon proper foundation being laid. There is and can be no serious controversy in the case at bar but that the books were properly received in evidence. That they were the books of the bank is clear. They were turned over by defendant himself to the receiver of the bank as its books, and all the entries contained therein had exclusive reference to the business and affairs of the corporation.
Witness Pope was called as an expert, a proper foundation was laid and he was shown to be fully qualified to testify concerning the subject in hand. He was permitted to testify that all of the transactions of the bank were entered in the books, and of this defendant complains. It is very usual on the part of banking corporations to enter all their business transactions in their books, though it is not clear that it was strictly proper to allow the witness to state that all those of this bank were so entered. He did not keep the books, and could speak only from his knowledge of the general custom in that particular. But, whether competent or not, the evidence on this subject in no way prejudiced defendant. No claim is made that all the transactions of the bank were not entered in the books, and the only entries which were material as affirmative evidence against defendant were made by himself. All the testimony of this witness was based upon what the books disclosed. He was asked what amount of money was taken from the assets of the bank on account of the Avelsgaard and one other note, and he answered $966, "according to the books." He did not, as contended by counsel, undertake to speak from personal knowledge. If his answer was inaccurate, the books were before the court, open to inspection, and he could have been corrected. It is quite true that the books should speak for themselves, but under the rule announced in the Clement...
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