State v. Serenson

• Decision Date: 03 August 1895
• Citation: 64 N.W. 130,7 S.D. 277
• Parties: STATE v. SERENSON.
• Court: South Dakota Supreme Court

64 N.W. 130

7 S.D. 277

STATE v. SERENSON.

Supreme Court of South Dakota

August 3, 1895

Syllabus by the Court.

1. Under the rule that admits the best attainable evidence of which a case in its nature is susceptible, the public record of a duly-acknowledged written instrument is admissible in evidence, when material, upon proof that the original is beyond the jurisdiction of the court and is neither owned nor controlled by the party in whose favor the record of such instrument is offered. Comp. Laws, § 5308.

2. When the question of agency is but incidentally involved, and it is shown, by competent evidence, that the accused has recognized such agency by a course of dealing, it is not reversible error to overrule an objection to the following preliminary, though perhaps indefinite, question, propounded by the state to a witness shown to have represented the party named, in relation to the business out of which the alleged embezzlement arose: "Did you act as agent for Albert E Egge in any transaction?"

3. Under the facts and circumstances of this case, the defendant has no reason to complain of the following instruction, which is in the precise language of section 6805 of the Compiled Laws: "The fact that the accused intended to restore the property embezzled, is no ground of defense, or of mitigation of punishment, if it has not been restored before an information has been laid before a magistrate, charging the commission of the offense."

4. For the purpose of elucidating, and with a desire to render more intelligible, the phrase, "reasonable doubt," the court instructed the jury as follows: "You are further instructed that the reasonable doubt which entitles an accused to an acquittal is a doubt of guilt reasonably arising from all the evidence in the case. The proof is deemed to be beyond reasonable doubt when the evidence is sufficient to impress the judgment of ordinarily prudent men with a conviction, on which they would act without hesitation, in their own most important concerns or affairs of life. In other words, in a legal sense, a reasonable doubt is a doubt which has some reason for its basis. It does not mean a doubt from mere caprice or groundless conjecture. A reasonable doubt is such a doubt as the jury are able to give a reason for." Held not reversible error.

5. Other instructions of the court to which assignments of error relate examined, and considered to be entirely proper, under the indictment and evidence before the jury.

Error to circuit court, Day county; A. W. Campbell, Judge.

Henry Serenson was convicted of embezzlement, and brings error. Affirmed.

E. W Taylor, Julian Bennett, and Martin E. Sheldon, for plaintiff in error. Coe I. Crawford, Atty. Gen., and John Lund State's Atty., for the State.

FULLER J.

The trial of plaintiff in error upon a valid indictment, in which he was accused with the embezzlement of $755.30, resulted in a verdict of guilty as charged, and a judgment was accordingly entered. From the evidence introduced in support of the allegations of the indictment, it appears that the defendant, in his official capacity as sheriff, received as money, on the 17th day of July, 1894, from certain mortgagors named in the indictment, a draft for $700, drawn by a Chicago bank in favor of itself, together with $55.30 in currency all of which was thus paid for the purpose of redeeming certain real estate from a mortgage foreclosure sale, at which the property was struck off and sold to one Albert E. Egge; and this draft was by the defendant deposited in a bank to his individual credit, and by him checked out, in due course of business, and no part of said money was paid to said Albert E. Egge, the purchaser of the mortgaged premises, and the owner of the certificate of sale at the time of such redemption. As the evidence, if competent, is clearly sufficient to sustain the verdict and conviction, we will briefly address ourselves to an examination of such of the assignments of error relating to the admission and exclusion of evidence, and the charge of the court, as may be regarded sufficiently important to merit attention.

For the purpose of laying a foundation for the introduction of an authenticated record of the certificate of redemption executed by the defendant at the time he received from the mortgagors and owners of the equity of redemption the amount required to redeem from the sale, and which the jury found he subsequently embezzled, the register of deeds was sworn, and, after the usual preliminary questions, the book and page containing a record of said certificate of redemption, signed and acknowledged by the defendant in the presence of witnesses, was offered in evidence. Witness further testified that: "After recording the certificate of redemption, he thought he delivered it to Thomas McKennett by mail, by whom it was delivered to him to be placed on record. Remembers of his own knowledge that he took the acknowledgment of the original certificate and Serenson's signature to the same. These records have been in my custody all the time, as an officer, since being recorded." The attorney for the state testified concerning the original certificate of redemption recorded in the office of the register of deeds, in the book and at the page offered for identification, as follows: "I don't know just exactly where it is, of my own knowledge. Presume that John McKennett has it. He is in Minnesota; and I sent for him, three or four days ago, requesting him to bring the original certificate with him. He has not sent it, and is not here, although I expected him this morning. He resides at Hopkins, Minnesota. I wrote, either Friday or Saturday night, notifying him to be present this morning with the...