State v. White

• Decision Date: 17 April 1928
• Docket Number: 4911
• Citation: 266 P. 415,46 Idaho 124
• Parties: STATE, Respondent, v. E. C. WHITE, Appellant
• Court: Idaho Supreme Court

266 P. 415

46 Idaho 124

STATE, Respondent, v. E. C. WHITE, Appellant

No. 4911

Supreme Court of Idaho

April 17, 1928

INDICTMENT AND INFORMATION - SUFFICIENCY - EMBEZZLEMENT-ELEMENTS OF OFFENSE-EVIDENCE-INSTRUCTIONS.

1. Each count in an information must be sufficient in itself and tested as though it stood alone and charged distinct offense.

2. Failure to allege in information charging embezzlement demand for payment of sum defendant was accused of embezzling was not fatal, since demand for payment is not an element of offense, demand and nonpayment when proved being merely evidence of embezzlement.

3. Crime of embezzlement involves, among other things, existence of fiduciary relations between accused and person injured of character mentioned in statute and receipt or acquisition by accused of property of another by reason of fiduciary relation.

4. Relation of debtor and creditor is not fiduciary, and a debtor is not a trustee for his creditor within meaning of C S., sec. 4853, relating to embezzlement.

5. Count of information, charging that defendant agreed to make loan to borrowers for $4,000 to be secured by mortgage, and that borrowers executed note and mortgage to defendant, and defendant paid $2,000 and agreed to hold balance of $2,000 in trust until house was completed, but after completion of house to defendant's knowledge defendant refused to pay balance, held not to charge crime of embezzlement under C. S., secs. 8450, 8453, since transaction pleaded made defendant borrowers' debtor only, and his agreement that he would hold balance in trust did not pass title to any property or lessen his ownership in any particular fund.

6. In prosecution for embezzlement, in which defendant was charged with having refused to pay part of sum he had agreed to loan borrowers on mortgage executed by them, instruction in effect that fiduciary relation was created between defendant and borrowers by defendant's agreement to purchase note and mortgage held erroneous.

7. In prosecution for embezzlement, in which state claimed defendant acted as agent for borrowers in obtaining loan for them on mortgage, part of which money defendant retained and refused to pay, and defendant claimed that agreement was that he was to loan his own money, evidence that defendant was in an embarrassed financial condition at time note and mortgage were executed held admissible.

8. In prosecution for embezzlement, in which defendant was charged with having obtained loan for borrowers on their mortgage as agent and retaining part of sum loaned and defendant claimed that he loaned his own money, instruction that if defendant accepted note and mortgage made payable to him and advanced $2,000 of his money therefor, and if loan to borrowers was simply loan from defendant to borrowers without any other agreement that defendant was to obtain money thereon and hold same for borrowers, then there was no agreement or trust relation established, but only relation of debtor and creditor, and verdict should be not guilty, held improperly refused where instruction given was not sufficient.

9. In prosecution for embezzlement, defendant is entitled to have his theory of transaction properly placed before jury by instructions.

10. In prosecution for embezzlement, refusing instruction that, if jury had reasonable doubt as to whether property was appropriated openly and avowedly under claim of title preferred in good faith, though untenable, verdict of not guilty should be returned, held error.

11. In prosecution for embezzlement, refusing instruction that, if jury had reasonable doubt as to whether defendant appropriated funds within scope of his authority verdict of not guilty should be returned, held error.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Clinton H. Hartson, Presiding Judge.

Prosecution for embezzlement. Judgment of conviction. Reversed and remanded.

Judgment reversed and a new trial ordered.

Roy L Black, for Appellant.

Count one is demurred to on the grounds that it shows on its face the agreement and understanding between the parties was that a portion of this money was to be left with the defendant White until the house was completed. The point is made that nowhere in said count does the information charge that there was a demand ever made upon the defendant for the said money or the balance thereof. When money is in the lawful possession of another, in trust, there must be a demand for the return of the money before there can be an embezzlement of it and this demand must be alleged and proven. (State v. Hall, 33 Idaho 135, 190 P. 251; State v Bilboa, 33 Idaho 128, 190 P. 248; State v. Gomes, 9 Kan. App. 63, 57 P. 262; Moss v. State, 3 Ala. App. 189, 58 So. 62; State v. Miller, 263 Mo. 326, 172 S.W. 385; State v. Coull, 52 Tex. Cr. 162; State v. Harris, 33 Ore. 446, 54 P. 198.)

The second point is that there is more than one offense charged in the information. The information alleges in the first paragraph of its second count that it is the charging of count one in a different form. We earnestly urge that the second count of the information does not charge the offense set forth in the first count of the information in a different form. If it charges any offense at all, which fact we deny, it charges an entirely different offense than is alleged in count one. (Authorities above cited.)

We therefore submit and urge that count two of the information does not state any public offense at all but that if it does state a public offense, it is an entirely different public offense than is attempted to be charged in count one of the information and that, therefore, if the latter is true, there is more than one offense charged in said information.

It cannot be said in this case that if count two of the information did not state any public offense, that it was, therefore, harmless, and that the defendant could not complain. (Authorities above cited.)

The question was presented timely by the demurrer and the lower court should have sustained the demurrer and required the state to file an information on one position or the other.

In People v. Lapique, 120 Cal. 25, 52 P. 40, the defendant was convicted of embezzlement and the disagreement and dispute was over the interpretation of the terms of a commission agreement. There was a sharp conflict in the evidence as to what the agreement was, and the court says that it is admitted that the defendant was guilty of sharp practice, but in view of the statute, Penal Code of California, sec. 511, which is the same as our statute, on the claim of title as a defense, the court held that since there was an honest claim in support of the defendant's position, the case should be reversed and the verdict of guilty set aside, and that the jury was not justified in saying in its verdict that the defendant's claim of title was not made in good faith.

The case of Wyatt v. State, 21 Okla. Cr. 121, 205 P. 194, holds as follows: "Syllabus 1. Embezzlement Key No. 4--Agent, Bailee or servant acting within his authorization is not guilty of embezzlement. If an agent, bailee, or servant does with the money or property of his principal only what he had been authorized to do, he is not guilty of embezzlement."

The foregoing was a situation somewhat like the one at bar. There was a dispute between the complaining witness and the defendant as to what authority the defendant has in the use of the property involved, and the court reversed the verdict of guilty on the ground that the agent used the money within the scope of his authority.

The defendant is not required to prove his defense of claim of title beyond a reasonable doubt or beyond any doubt. The rule, that if it appears from the evidence that the defendant honestly believes the property his, that is a sufficient defense. Defendant does not have to prove that defense beyond a reasonable doubt, and if there is a reasonable doubt on said claim then the jury must acquit.

The foregoing rule is recognized in the standard works on instruction, this class of cases. 2 Blashfield on Instructions, p. 2188, in the conclusion of Instruction No. 2936, approves the following: "But if you believe from the evidence or have a reasonable doubt, that it was the intention of the defendant, at the time he sold or pledged said horse, to act in good faith toward said A. and carry out his alleged agreement and that he, after said sale or pledge, conceived for the first time the intention to appropriate the proceeds of the sale or pledge, then he would not be guilty of embezzlement of the horse and you will find him not guilty."

Frank L. Stephan, Attorney General, and Leon M. Fisk, Assistant Attorney General, for Respondent.

It is not necessary to allege a demand for payment or return of money in embezzlement. (1 Wharton, Crim. Proc., 10th ed., sec. 593; 9 R. C. L., sec. 35, p. 1292; Reynolds v. State, 64 N.J.L. 424, 47 A. 644; State v. Hoff, 29 N.D. 412, 150 N.W. 929; Bartley v. State, 53 Neb. 310, 73 N.W. 744.)

One offense may be charged in different ways in separate counts of an indictment or information in order to meet the proof to be submitted. (State v. Gruber, 19 Idaho 692, 115 P. 1; 31 C. J. 776; State v. Harris, 103 Kan. 347, 175 P. 153; Etter v. State, 4 Okla. Cr. 230, 111 P. 957.)

An agreement to secure a loan on a note and mortgage for a borrower where the same have been delivered makes the person negotiating the loan agent or trustee within the purview of the embezzlement act where he converts the money to his own use instead of paying the same to the borrower. (State v. Foster, 1 Penne. (Del.) 289, 40 A. 939; State v. Foster, 2 Penne. (Del.) 111, 43 A. 265.)

Different ways and means by which a single offense...