State v. Ugland

• Decision Date: 06 March 1922
• Citation: 48 N.D. 841,187 N.W. 237
• Parties: STATE v. UGLAND.
• Court: North Dakota Supreme Court

48 N.D. 841

187 N.W. 237

STATE

v.UGLAND.

Supreme Court of North Dakota.

March 6, 1922.

Syllabus by the Court.

The verdict of the jury, based upon substantial competent evidence, is binding on the court. Following State v. Cray, 31 N. D. 67, 153 N. W. 425.

To constitute the crime of “embezzlement,” the possession of the property appropriated must have been, by the owner, or for or in his behalf, intrusted to the accused so that a relation of trust and confidence relative to the thing appropriated is created, and it must appear that the accused had access to or possession of the property embezzled by virtue of such relation of trust and confidence.

The owner of grain hired accused on a monthly salary to assist in harvesting, threshing, caring for, and transporting said grain to market. Held, that the possession of said grain, under such circumstances, remains in the owner thereof; and if accused having access to and custody of the grain, for such purposes, stealthily takes and carries away the same, or a portion thereof, without the consent of the owner, and stealthily converts the same to his own use, he takes it from the possession of the owner, and is properly informed against for the larceny thereof.

Appeal from District Court, Ramsey County; Buttz, Judge.

David H. Ugland was convicted of grand larceny, and he appeals. Affirmed.Palda & Aaker, of Minot, for appellant.

Sveinbjorn Johnson, Atty. Gen. (Spalding & Shure, of Fargo, of counsel), for the State.

PUGH, District Judge.

Defendant was convicted of the crime of grand larceny, and, from the judgment entered on the verdict, he appeals to this court.

August 10, 1918, and October 12, 1918, to satisfy creditors and avoid bankruptcy proceedings, the defendant executed certain agreements, whereby for the benefit of his creditors, he assigned and delivered to W. H. Shure, as trustee, all his property, both real and personal (excepting household goods and homestead). The real property consisted of upwards of 13,000 acres of land.

Surrounded by lands owned by defendant was a quarter section of land formerly owned by B. G. Johnson, against which was a second mortgage. The mortgagee therein sold the same to the defendant, the assignment running to the bank of which Ugland was then cashier. The mortgage was foreclosed, the land sold, and sheriff's certificate issued in the name of the bank February 2, 1918, and prior to the assignment for the benefit of creditors made to Shure. Thereafter and prior to the assignment to Shure, defendant entered into an agreement with Johnson whereby defendant agreed to farm said quarter section of land during the farming season of 1918 and to apply one-third of the crop raised and harvested and threshed from the land, that being Johnson's share of the crop, after deducting one-third of the threshing bill, to the payment of the sheriff's certificate aforesaid; the remaining two-thirds to be defendant's share of the crop. A crop of flax was raised on the land, and it is a portion of this crop, to wit, 112 bushels thereof, which is the subject of the alleged larceny. After the execution of the trust agreements, the trustee, Shure, hired defendant in August, 1918, and agreed to pay him $100 per month wages, to assist in caring for the crops.

During the threshing of the crops on the so-called Johnson land, in the temporary absence of the trustee, Shure, and without the knowledge of Johnson or the trustee, Shure, defendant directed one of the workmen, who was hauling grain from the threshing machine, to haul a portion of the flax from the machine and place it in a granary situated some distance from the Johnson land, but which granary was situated on land which defendant had theretofore transferred to Shure, as trustee, as aforesaid. One hundred twelve bushels of said flax was placed in said granary, where it was permitted to remain two weeks. The remainder of the flax on the Johnson land was hauled to an elevator at Knox and there placed in a special bin, and report thereof given by defendant to Shure. Shure had given directions that all flax threshed from the land which defendant had transferred to him, including the Johnson quarter, be hauled to an elevator at Knox and placed in special bin. The flax placed in the granary, as aforesaid, to wit, 112 bushels, was thereafter, by direction of defendant, without the knowledge of Shure or Johnson, hauled to the St. Anthony & Dakota Elevator at Pleasant Lake, N. D., by one Weaver, an employé of the trustee, Shure, and there stored in the name of one E. N. Dokken of Knox, N. D., with whom defendant had had business dealings for many years. About six days later it was sold by, or by direction of, the defendant without the knowledge of Shure or Johnson. The draft or check issued in payment therefor was delivered to defendant and by him handed to Dokken with the request that he indorse the some. Dokken indorsed it by writing his name on the back thereof and handed it back to the defendant, who received the money for it.

The evidence further shows that during absences of the trustee, Shure, from the farm, defendant gave instructions to the workmen.

The grounds and reasons which defendant urges for a reversal of the judgment are:

(a) The evidence is insufficient to justify the verdict, in that he alleges there was no proof of ownership in the trustee of the flax taken by defendant; and

(b) The offense, if any, for which the defendant might have been prosecuted, under the facts in the case, was embezzlement, not larceny.

[1] 1. It was the contention of the defendant that the flax in question was the property of Johnson. There is no contention, by either party, that the bank, in whose name the assignment of the mortgage was, and to which the sheriff's certificate was later issued, had any interest in this flax. Johnson's right to possession of the flax depends upon the terms of his agreement with defendant, and the question of whether the verdict of the jury is based upon substantial, competent testimony, in turn, rests upon the testimony relative to the agreement between the defendant and Johnson, and, is in brief, as follows: Shure testified as a witness in the case that defendant informed him that he had agreed with Johnson to farm this land during the season of 1918, sow the cultivated land to flax, and in case of redemption from the foreclosure was to get a share of the crop. He further testifies that Johnson was present during all the time this flax was being threshed; that he knew it was being delivered to the elevator at Knox. The record is silent as to whether Johnson made any objection thereto.

The agreement between Johnson and defendant is further evidenced by letter written by defendant to Johnson, care of Attorney Siver Serumgard, in which he says:

“Mr. J. E. McCarthy has just showed me your letter of the 7th inst. regarding renting your land foreclosed on by Security Bank of Knox, and I accept your terms stated therein and will apply one-third of the proceeds of the flax crop after payment of one-third of thresh bill by you on the above foreclosure.”

The defendant testified the agreement with Johnson was to the effect that, if there was not sufficient money derived from the one-third of the crop to take up the certificate, then the proceeds of such one-third were to be paid over to Mr. Johnson. Neither the state nor defendant called Johnson as a witness.

From this evidence, somewhat conflicting, the jury might reasonably find, as they did find, in arriving at their verdict, that Shure was the owner, as trustee, of the flax in question, or that as such trustee he was entitled to the possession thereof.

The question of ownership or right to possession of the flax was fairly submitted to the jury by the instructions of the trial court. In his instructions the court said:

“It is the claim of Mr. Ugland that he took this property, not intending to steal it, but that he took it, as he claims, in good faith; on behalf of Mr. Johnson, or in order to protect the rights of Mr. Johnson, as he claims; and, in passing on the guilt or innocence of the defendant, you shall carefully consider the claims of the defendant in that respect, as well as all other claims he makes in this lawsuit.”

That the question of the ownership or right to possession of this flax was actually considered by the jury is further shown by the request of the jury, after retiring, for further instructions concerning this phase of the case. The jury was brought into court, and, after a colloquy between members thereof and the judge, the following additional instruction was given:

“To make the taking larceny, the grain must either have been the property of Mr. Shure in his capacity as trustee, or else in his possession as trustee of the Ugland estate under the farming agreement of Ugland with Johnson, and the taking must have been by Mr. Ugland with the intent and purpose in Ugland's mind to steal it. If Mr. Ugland took it from Shure's possession in good faith and with the intent to protect Johnson's interest, he would not be guilty of larceny, etc.”

No complaint is made with reference to these instructions.

The finding of the jury is binding on this court when based upon substantial, competent evidence that, in any reasonable view thereof which the jury has the right to take, justifies the verdict. State v. Cray, 31 N. D. 67, 153 N. W. 425;State v. Wheeler, 38 N. D. 456, 165 N. W. 574;State v. Burcham (N. D.) 176 N....