State v. Van Kuran

• Decision Date: 04 June 1902
• Docket Number: 1360
• Citation: 69 P. 60,25 Utah 8
• Court: Utah Supreme Court
• Parties: THE STATE OF UTAH, Respondent, v. ARTHUR J. VAN KURAN, Appellant

69 P. 60

25 Utah 8

THE STATE OF UTAH, Respondent, v. ARTHUR J. VAN KURAN, Appellant

No. 1360

Supreme Court of Utah

June 4, 1902

Appeal from the Third District Court, Salt Lake County.--Hon. S.W Stewart, Judge.

The defendant was prosecuted for, and convicted of, the crime of embezzlement. Upon being sentenced to imprisonment in the State prison, he appealed.

REVERSED.

Messrs Powers, Straup & Lippman and H. E. Booth, Esq., for appellant.

Clearly there was error in the charge of the court upon the subject of character and in the refusal to give the instructions requested by the defendant. State v. Blue, 17 Utah 183; People v. Doggett, 62 Cal. 27; People v Shepardson, 49 Cal. 631; People v. Hancock, 7 Utah 177-8; Fields v. State, 11 Am. Rep. 771; Springfield v. State, 38 Am. St. 91; 5 Am. and Eng. Ency. Law (2 Ed.), p. 867, and cases. The court charged the jury that "the precise time, or the amount alleged in the information are not material. It is sufficient if it appears from the evidence, beyond a reasonable doubt, that the defendant embezzled the moneys charged in the information or some part thereof." A general verdict of guilty is only sufficient when there is but one penalty for the offense which is fixed, and there is no variation, according to the grade of the offense. Highland v. People, 1 Scam. (Ill.) 392; Locke v. State, 32 N.H. 106; State v. Redman, 17 Iowa 329; Miles v. State, 3 Tex. App. 58; Thompson v. People, 125 Ill. 256; Collins v. State, 6 Tex. App. 647; Timmons v. State, 56 Miss. 786; State v. Sommerville, 21 Me. 20; State v. Cleveland, 58 Me. 564; Tobin v. People, 104 Ill. 565; Sawyer v. People, 3 Gilm. 54; Thomas v. Stater, 5 How. (Miss.) 20; Sheries v. State, 42 Miss. 331; Dick v. State, 3 Ohio St. 89; McPherson v. State, 9 Yerg. 279; Kirby v. State, 7 Yerg. 259; Colin v. State, 16 Ala. 781.

Hon. M. A. Breeden, Attorney-General, Hon. W. R. White, Deputy Attorney-General, and Messrs. Richards & Varian for the State.

The principal objection relied upon, as we infer from counsel's brief, is that based upon exceptions to the charge in relation to the effect of good character.

The court charged the jury: "You are instructed that evidence of previous good character is competent evidence in favor of a party accused, as tending to show that he would not be likely to commit the crime alleged against him. And in this case, if the jury believe, from the evidence, that prior to the commission of the alleged crime, the defendant had always borne a good character for honesty and truth among his acquaintances and in the neighborhood where he lived, then this is a fact proper to be considered by the jury, with all the other evidence in the case, in determining the question whether the witnesses who have testified to facts tending to criminate him have been mistaken or have testified falsely or truthfully; and if, after a careful consideration of all the evidence in the case, including that bearing upon his previous good character, the jury entertain any reasonable doubt of the defendant's guilt, then it is their sworn duty to acquit him."

By this instruction it is contended that the effect of the good character of the defendant is restricted to a determination of the single question whether the prosecuting witnesses have been mistaken or have testified falsely or truthfully, as evidenced by the language above italicized. If this were, in fact, the true interpretation of the instruction, it seems to us it would still be a correct statement of the law, since the determination of the guilt of an accused person must necessarily depend upon the truth or falsity of the evidence given against him. It will be observed by this instruction, that the court fully informed the jury that evidence of the previous good character of the defendant was competent in his favor, as tending to show that he would not be likely to commit the crime charged, and they were also finally told that, if, after a careful consideration of all the evidence in the case, including that bearing upon his previous good character, they entertained any reasonable doubt of his guilt, it was their sworn duty to acquit him.

Appellant, in his brief, urges error, because the jury were told that time was not material. But the instruction in this particular seems to be in accord with the law. R. S., sec. 4737; State v. Woolsey, 19 Utah 493.

The verdict of the jury is not set out in the abstract, in haec verba, but it was as follows:

"We, the jurors impaneled in the above case, find the defendant guilty of embezzlement as charged in the information."

The information charged the defendant with the embezzlement of $ 8,000. The evidence all tended to show that $ 8,000 was embezzled. There was no pretense of any smaller sum. No effort was made at the trial to show a less amount, and the case was tried upon the theory that the sum was $ 8,000 or nothing. The verdict found the defendant guilty as to the whole charge, and this finding negatives the question made by counsel. A general finding of "guilty" "will be interpreted as guilty of all that the indictment well alleges." Bishop, Cr. Pro., 3 Ed., Vol. 1, sec. 1005a; People v. Magallones, 15 Cal. 426; Armstrong v. People, 37 Ill. 459; Bond v. People, 39 Ill. 27-28; State v. Lawry; 4 Nev. 161.

BARTCH, J. MINER, C. J., and BASKIN, J., concur.

OPINION

BARTCH, J.

The defendant was prosecuted for, and convicted of, the crime of embezzlement. Upon being sentenced to imprisonment in the State prison, he appealed to this court, claiming that his conviction was not lawful, and that a new trial ought to be granted. From the record it appears that he was charged with unlawfully, feloniously, and fraudulently appropriating and embezzling $ 8,000 of money belonging to the Oregon Short Line Railroad Company, a corporation, on February 8, 1901; he, as is averred, having been intrusted with the money as the local treasurer of that company. From the evidence, among other things, it appears that the defendant became the local treasurer of the company in March, 1897, and remained such until this trouble arose; that previous to his employment as such treasurer, and ever since October, 1880, he was chief clerk in the treasurer's department of the Union Pacific Railroad Company at Omaha, Nebraska; that in the course of such employment vast sums of money passed through his hands; that while local treasurer of the Oregon Short Line Railroad Company the money received amounted to $ 700,000 to $ 1,000,000 per month, about half of which passed through his office; that the money was deposited mostly in McCornick & Company's and Jones & Company's Banks; that various books were kept in the local treasurer's office, showing the accounts of the company and the accounts with the banks; that the remittances from agents and conductors, amounting to about a half million dollars per month, were made directly to the banks, and were not handled by the local treasurer's office at all; that the banks would give the treasurer credit, and then send him the deposit slips, to enable him to make the entries in his books; that the money, checks, and drafts received at the local treasurer's office were usually taken to the bank by the chief clerk, but sometimes they were taken by the other clerk, sometimes by the hall boy, and sometimes by the janitor; that three persons had access to these things in the local treasurer's office, and the chief clerk had a key to the office, and had access to the books; that the other clerk and janitor also had keys; that on several occasions discrepancies between the accounts appeared from the books of the treasurer and of the banks, but which, until the present instance, were always found to be mere errors in the accounts; and that the discrepancy or shortage which has resulted in this prosecution amounts, as per such books, to $ 8,000, which sum, it appears, has not been satisfactorily accounted for by the treasurer.

At the trial it was shown that the defendant, prior to the alleged defalcation, had always borne a good character for truth and honesty, and this forms the basis for the principal question raised upon this appeal. The appellant insists that the court erred in its charge to the jury as to character, and in refusing to charge as requested. Among other things, the defense requested the court to charge as follows: "You are further instructed that good character is an important fact with every man, and never more so than when he is put on trial, charged with an offense which is rendered improbable in the last degree by a uniform course of life wholly inconsistent with any such crime. There are cas...