State v. Thompson

• Decision Date: 30 December 1895
• Parties: STATE v. THOMPSON. [1]
• Court: Oregon Supreme Court

42 P. 1002

28 Or. 296

STATE v. THOMPSON. ^[1]

Supreme Court of Oregon

December 30, 1895

Appeal from circuit court, Multnomah county; T.A. Stephens, Judge.

C.C Thompson appeals from a conviction. Affirmed.

B.P. Welch, for appellant.

C.M Idleman, Atty. Gen., and W.T. Hume, Dist. Atty., for the State.

BEAN C.J.

The defendant was tried and convicted of the crime of larceny by bailee, under an indictment charging that on the 14th day of June, 1894, the defendant, being "the bailee and trustee of a certain promissory note, dated on the 18th day of February, A.D. 1889, signed by F.F. Jancke, and for the sum of three hundred and seventy-five dollars, and made payable to the order of E.W. Cressy, of the value of three hundred and seventy-five dollars, the personal property of J.F Broetje," did feloniously embezzle, and unlawfully convert the same to his own use, etc. From the judgment rendered upon such conviction, he appeals; assigning error in overruling his demurrer to the indictment, and in the admission of testimony by the trial court. The undisputed facts in the case are that in June, 1894, application was made to the county court of Clackamas county for the appointment of a guardian for one E.W. Cressy, who was old and feeble in mind and body, and incapable of taking care of himself. At this time Cressy, who was the owner of considerable property, was in possession of a certain promissory note in his favor, for $375, dated February 16 1889, executed by F.F. Jancke, and secured by a mortgage, but which had in fact been paid by one Broetje, who had purchased from Jancke the mortgaged premises, and, as a part of the consideration therefor, had assumed and agreed to pay the note in question, and for that purpose had become a party thereto. Soon after the application for the appointment of a guardian, and the service of a citation upon him, Cressy suddenly disappeared from his usual place of abode, leaving among his effects several promissory notes and mortgages; among the number being the note above referred to, upon which this prosecution was based. On the 14th of June, and after the disappearance of Cressy, a son of the proprietor of the house where he had been staying, acting upon the advice of a neighboring justice of the peace, delivered these notes and mortgages, for safe-keeping, to the defendant, who was, or claimed to be, attorney for Cressy, and took his receipt therefor as such attorney. A few days afterwards one Hungerford, who was appointed guardian of the person and estate oF cressy by tHE clackamas county court, demanded of the defendant possession of the notes and mortgages which had been so delivered to him, but without avail. Defendant, being thereupon cited by the county court to appear and answer concerning the property which had been intrusted to him, denied having possession of the same, and claimed that he had redelivered it to Cressy. But in November following he demanded payment of the note in question from Broetje, and was informed by him that it had been paid to Cressy, who failed to surrender it because, as he said, it had been lost. Thereafter the defendant, notwithstanding his knowledge of such payment and the appointment of a guardian for Cressy, procured his indorsement on the note, which was not yet due, and sold it for about its face value, and appropriated the money to his own use. After the sale of the note he was again required by the county court, on petition of the guardian, to appear and answer concerning the same, which he did, and upon examination said he did not know what had become of the note; that he left it lying on his office desk, and it disappeared in some manner unknown to him, and he did not know where it then was; that he never received anything for it, directly or indirectly, and knew nothing concerning...