State v. Wine

• Decision Date: 29 October 1897
• Court: North Dakota Supreme Court

72 N.W. 905

7 N.D. 18

STATE OF NORTH DAKOTA v. ALLEN J. WINE

Supreme Court of North Dakota

October 29, 1897

Appeal from District Court, Cass County; Pollock, J.

Allen J. Wine, informed against as Joseph Miller, was convicted of embezzlement, and appeals.

Reversed.

Reversed.

Taylor Crum and Ida M. Crum, for appellant.

Defendant's plea in abatement should have been sustained. It is not competent to try defendant upon a different charge from that named in the requisition upon which he was brought into the state. State v. Hall, 19 P. 919. No conviction for embezzlement can be had until a demand has been made for the property claimed to have been embezzled. Peo. v Tomlinson, 5 P. 509. The defendant guaranteed the payment of money entrusted to him with interest. He became personally liable for the payment of the money and his failure to return it was not embezzlement. Kribs v Peo., 2 Am. Crim. Repts. 109. A partner cannot be held for an embezzlement of partnership funds. State v Butman, 60 Am. Rep. 332; 1 Whart. Cr. Law, § § 1015, 1054, 922; State v. Reddick, 2 S.D. 124, 48 N.W. 846.

F. B. Morrill, States Atty., and John F. Cowan, Atty. Gen'l., for respondent.

A fugitive from justice extradited from another state can be tried for any offense against the laws of the state from which he fled. Subd. 2, § 2, Art. 4, Const. U. S.; Lascelles v. State, 148 U.S. 535; 37 L.Ed. 549. The jurisdiction of the court is not impaired even if the fugitive is taken by force from the state into which he has fled. Mahon v. Justice, 127 U.S. 700, 32 L.Ed. 283. No partnership was entered into between Lagerberg, Berg and Wine. There was talk of a partnership but it was never consummated. After Wine got Lagerbergs money into his possession he appropriated it to his own use and abandoned the enterprise. An executory contract to form a partnership is not a partnership. 1 Bates, 78; Lycoming Ins. Co. v. Barringer, 73 Ill. 230; Baldwin v. Burrows, 47 N.Y. 199. If the doing of certain things are conditions precedent to the existence of the partnership, the parties are not partners until they are performed. Napoleon v. State, 3 Tex.App. 522; Metcalf v. Redmond, 43 Ill. 264; Hobart v. Ballard, 31 Ia. 521; 2 Bish. Cr. L. § 345; Bates on Partnership, § 83.

OPINION

WALLIN, J.

The defendant is charged with the crime of embezzlement, and in January, 1897, was found guilty by a jury, There was a motion for a new trial based upon a bill of exceptions embracing the evidence and the proceedings had at the trial. Upon his arraignment (it appearing that the charge of embezzlement as stated in the information was leveled against one Joseph Miller) the defendant declared that his name was not Joseph Miller, but Allen J. Wine. Accordingly, all subsequent proceedings in the case were had against the defendant under the name of Allen J. Wine. The information charged one Joseph Miller with embezzlement, and was drawn under the provisions of § 7464 of the Rev. Codes, which reads: "If any person being a trustee, banker, merchant, broker, attorney, agent, assignee in trust, receiver, executor, administrator or collector, or being otherwise entrusted with or having in his control property for the use of any other person, or for any public or benevolent use, fraudulently appropriates it to any use or purpose not in the due and lawful execution of his trust, or secrets it with a fraudulent intent to appropriate it to such use or purpose, he is guilty of embezzlement." In effect, the specific charge in the information is that defendant was the agent of one Swan Lagerberg at the time stated, and that as such agent he was intrusted by Lagerberg with $ 1,145, the property of Lagerberg, and that he feloniously appropriated said money to his own use, and not in the due and lawful execution of his trust. At the trial, all the evidence, or nearly all, converged upon the question of the defendant's identity. Witnesses for the state testified that the prisoner at the bar was the identical person who, under the name of Joseph Miller, had visited Fargo, in Cass County, in the year 1895, and while there had entered into certain business relations and transactions touching a gold mine with divers persons, among others with Lagerberg, as will further appear hereafter. The defendant produced a still larger number of witnesses, who testified that they knew said Joseph Miller, and saw him frequently at Fargo, in the year 1895, and also knew that the defendant on trial was not said Joseph Miller. In disposing of the case, however, in this court, we shall assume that the defendant is identified as the Joseph Miller named in the information. Identity is a question of pure fact, and, inasmuch as the jury (upon competent evidence) returned a verdict of guilty, it must be assumed in this court that the question of defendant's identity was resolved adversely to the defendant.

The testimony relied on by the state to establish the offense charged is wholly undisputed, and is, in the main, harmonious with itself. The transactions and facts constituting the offense charged, if any there is, may be condensed within a brief statement. It appears that the defendant, under the name of Joseph Miller, came to Fargo in the month of April or May, 1895, and remained there until the early part of October of that year, and then departed, and never reported his whereabouts or returned to Fargo until he was brought back in the autumn of 1896 as a prisoner charged with obtaining money under false pretenses. While at Fargo in 1895 he represented himself to be a detective in the employ of the government. He also claimed to be the owner of a stock ranch in the State of Idaho. He further stated that he knew of a very valuable gold mine located in Montana, which mine he claimed to have secured an interest in by paying down a small amount to bind a bargain for the purchase of the mine. To whom this sum was claimed to have been paid does not clearly appear. He further stated that he knew, and was particularly well acquainted with, the original owner of the mine, had befriended him, and that he was certain that he could secure the rights of such owner. Such owner was, according to Miller's statements then a refugee from justice in Mexico, and was known to Miller, and Miller stated that he could and would find him, and obtain a transfer of his interest in the mine; and, after obtaining such interest, he claimed that the interest of other parties in the mine, who were in Montana, could also be purchased, and thereby the whole title of the mine could be secured by the purchasers. To further bolster his credit and financial responsibility, Miller exhibited a certain check, which was put in evidence, upon a bank at Cincinnati, Ohio, for a large sum. This check Miller placed in the hands of one Mrs. Berg, the wife of a policeman at Fargo, which policeman went into the mining deal that after wards was made with Miller. This check was seen and examined by the Fargo parties, who placed money in Miller's hands in furtherance of the mining deal, and it appears clearly that the check was one considerable factor, at least, in inducing several parties to enter into the arrangement which was made with Miller concerning the Montana mine. This check was left with Mrs. Berg when Miller went away with the understanding that he was going to Mexico to secure a transfer of the owner's claim in the mine. Miller stated that he would be absent on the Mexican trip a week or ten days, and that when he returned the money could be drawn on his check. Under the arrangement Berg was was to take the check, and go to Ohio, and get it cashed, and out of the proceeds Miller himself was to invest a large amount in the mine; but it was arranged that Berg should personally go to Montana, and buy out the interests in the mine held in Montana, using Miller's funds and certain funds contributed by parties at Fargo, as hereinafter shown. Miller also claimed that he knew of two parties in South Dakota who would invest in the mine, but to what amount seems not to have been stated, nor does it appear that their names were ever given by Miller. Upon such representations it appears that several parties residing at Fargo entered into the mining scheme with the defendant as outlined above, and paid over money to him for investment in the scheme. Swan Lagerberg, who is named in the information, paid over to defendant at different times divers sums of money, amounting to the sum charged in the information, viz. $ 1,145. One C. L. Berg and one Edward Ness about the same time placed considerable sums of money in defendant's hands upon his promise to use the same in purchasing the mine. Lagerberg, Ness, and Berg were witnesses in the case, and, while their testimony differs slightly in some details, it is the same in all vital particulars affecting the arrangement under which the money was placed in defendant's possession. Referring to a statement made to him by Berg, who spoke Lagerberg's language, and who made the statement at Miller's request, Lagerberg testified as follows: "He told me that he had invested money in it, and said that he had confidence in the man, and that the deal was all right, and that the mine was located in Montana somewhere. I have forgotten the name of the mountain. Miller had told him that he had been to the mountain, and found gold enough to fill his hat, but that Miller had to go to Mexico to see a man down there, and that he (Berg) should buy the mine. Q. What language was being used then? A. English. Q. What further, on that subject, did Berg state at that time? A. When they had got money enough, which should be the amount of $ 9,000, should be put in there by different parties, they should go out there, and buy that mine,--all of us...