Territory of New Mexico v. Maxwell
| Decision Date | 30 January 1882 |
| Citation | 2 N.M. 250,1882 NMSC 010 |
| Parties | THE TERRITORY OF NEW MEXICO, Appellee, v. GEORGE W. MAXWELL, Appellant. |
| Court | New Mexico Supreme Court |
Appeal from District Court of Doña Ana county, BRISTOL, J.
At the November term, A. D. 1877, of the district court, Doña Ana county, the appellant was indicted for the crime of embezzlement, and was tried at the June, A. D. 1878, term of said court, and convicted and sentenced to pay a fine of $500 and costs of prosecution.
The testimony adduced at the trial shows that appellant was intrusted with $10,000 in money, the property of one Mrs Daily (afterwards Mrs. Rea). That said Mrs. Daily was, at the time she gave the money to appellant, a partner in business (general merchandise) with appellant; that said money was originally given to appellant by his said partner to loan out at interest; that said money was so loaned out to different parties by appellant, and finally was loaned by appellant to the firm of " G. W. Maxwell & Co.," which said firm was composed of said appellant and Mrs. Daily; that the money was never paid back by appellant to Mrs. Daily, except the sum of $1,060— the balance of the said $10,000 was expended in paying the debts of said copartnership; that appellant on August 17, 1877, rendered an account of this money to Mrs. Daily, showing the amounts he had expended on her account and the balance still due her; that upon the dissolution of said company, appellant turned over to Mrs Daily all the property and effects of said company, valued at about $31,000, and Mrs. Daily was to pay the debts due by the company, which amounted to some $16,000.
— , for appellant.
First. The indictment charges that the money was received in the name and for the account of Mrs. Daily.
The testimony shows receipt of money with directions to be loaned at interest.
Second. The indictment does not prescribe any particular article alleged to have been embezzled, sufficiently: State v. Edson , 10 Louisiana " A.," 228; People v. Cox , 40 Cal. 277; Russell on Crime, 185.
Third. The proofs show the money was loaned to a partnership and in effect paid back, and only shows bad judgment, and at most a breach of trust, but not embezzlement.
Fourth. The indictment does not show the object for which the money was received by the defendant: 2 Russell on Crimes, 195.
Fifth. Proofs do not show the conversion of any single article by description, which does not establish embezzlement: Russell on Crimes, 184, 186.
Sixth. The proofs show that defendant made no concealment, but shows that defendant admitted loaning money to the partnership, alleging a right in himself to so do. This is not embezzlement: Fisher's Dig. Crim. Law, 119; Roscoe Crim. Ev., 416, 402.
Seventh. Proofs show that the money was received by defendant from his principal direct, and not from some one else for and on her account, which cannot be embezzlement: King v. Howe , Fisher's Dig., 119; Russell on Crimes, 166, 180; 2 Bishop Crim. Law, 352.
W. L. Rynerson and William Breeden, for appellee.
Upon all the points and propositions of fact relied upon for the defense, there was a conflict of evidence, which the jury passed upon, and it is not competent for this court to review the finding or attempt to settle conflicts of evidence, or the credibility of witnesses.
As to first point of appellant. The evidence shows that the money was intrusted to the defendant for a certain purpose. If he appropriated or converted it to his own use, he was guilty of embezzlement: Compiled Laws of New Mexico, sec. 23, p. 334.
Further, the evidence shows that the defendant loaned the money intrusted to him to Barela and others, and that he afterwards received the same from these parties for and on account of Mrs. Daily (Rea), which would make the conversion of the same to his own use embezzlement under the common law definition and under our statute: Compiled Laws of N. M., sec. 22, p. 334.
The description in the indictment of the property embezzled is sufficient, as is also the description in the evidence; it was money, and could not be more accurately described: Archibold's Crim. Pleading, 60, 330.
In the concealment and accounting by defendant there is a conflict of evidence which was purely a matter for the jury to determine.
There was sufficient to show and to authorize the jury to find that the defendant received ten thousand dollars from the witness, Mrs. Daily, and that he never returned or repaid it to her, although required so to do. This would make embezzlement under section 23, above cited, of our statute.
And also that he received the money for and on account of Mrs. Daily, from Barela and others, which money was never in her hands or possession, and that the defendant has never paid over the same to Mrs. Daily, although she demanded it of him. This would be embezzlement under the strict common-law definition, and under section 22 of our statute.
The questions involved are matters of fact which it was the province of the jury to determine, and which the jury did determine. This court cannot undertake the trial of the cause upon the evidence, or review the finding of the jury upon conflicting evidence.
This is a case of embezzlement arising in the third district court, and brought here by appeal.
The defendant was indicted by the grand jury of Doña Ana county, on the 16th day of November, 1877, the indictment setting out that the said Maxwell, on the first day of May, 1877, being then and there employed as agent and servant of and to Mariacita C. Daily, did, by virtue of his said employment, and while he was so employed, as aforesaid, receive and take into his possession certain money, to wit, etc. (giving seven different descriptions), of the value of $10,000, for and in the name and on the account of the said Mariacita C. Daily, his principal and employer, and the said money * * then and there fraudulently and feloniously did embezzle and convert to his own use, he, the said G. W. Maxwell, not then and there being an apprentice, nor a person under the legal age of sixteen years, and so, etc., " said money, notes and coin, the property of the M. C. Daily, his said principal and employer, from the said M. C. Daily, unfully did steal, take and carry away."
On the next day the defendant interposed a demurrer to the indictment, giving as causes thereof, the following, substantially:
1. That the money or property is not described with sufficient particularity.
2. That it is not set out specifically.
3. There should be a description of both number and denomination of both coin and notes.
This demurrer was overruled by the court, on the nineteenth of November, and thereupon the defendant pleaded " not guilty." The trial then proceeded, and on the twenty-first, the jury rendered a verdict of guilty, and assessed the judgment at a fine of $500.
Thereupon a motion in arrest of judgment was interposed, which was overruled. Judgment was pronounced in accordance with the verdict, and the defendant appealed to this court.
The appellant made his argument on seven points, which appear on his brief, and which we will consider separately, so far as their nature will permit.
The first and the sixth points may be disposed of together, as in each case there was evidence adduced, as to the truth of which the jury were the sole judges, sufficient to support the verdict. The first point is that, while " the indictment charges that the money was received in the name and for the account of Mrs. Daily," the testimony shows receipt of money with directions to be loaned at interest. As matter of fact there is evidence from defendant himself, as well as from other witnesses, that the greater part, if not all, of the precise money which defendant is charged with embezzling, was received directly from Lesinsky, Barela & Co.; that it was so received " for the account of Mrs. Daily," and so literally " in the name" of that lady; that two of the receipts put in evidence are signed, " Mariacita Daily, pr G. W. Maxwell." The jury had the right to believe this evidence, if satisfied of its truth.
The sixth point is: Without commenting on this proposition as matter of law, it is sufficient to say that there is much in the evidence for which the jury could conclude, if so disposed, that the reverse of the above statement of fact, was, as to concealment, the case. For example, Mrs. Daily, in her evidence, says: It is such a well established rule as scarcely to require repetition, that, when there is competent evidence, the jury are the judges of its credibility, and the weight to be attached to it.
From the evidence before them, the jury in this case had a right to believe, if satisfied of its truth, that the defendants made these statements as to the money being loaned out long after that money, or the most of it, had come back into his possession, and when they were palpably false. The same right of the jury to decide as to questions of fact covers the subject of the fifth point also.
The fourth point is that " the indictment does not show the object for which the money was received by the defendant." One authority only is cited as showing the necessity...
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