The State v. Hoff
| Citation | 150 N.W. 929,29 N.D. 412 |
| Decision Date | 18 January 1915 |
| Court | United States State Supreme Court of North Dakota |
Defendant, convicted of embezzlement, appeals from the judgment of the District Court of Mountrail County, F. E Fisk, J.
Affirmed.
E. R Sinkler for appellant.
The information is insufficient for the reason that the charging clause or part is in recital form. No bailment is alleged. No demand for the return of the property is alleged. No conversion alleged. No fiduciary capacity is pleaded, and no trust relation shown. The information is bad for duplicity. State v. Messenger, 58 N.H. 348; State v. Palmer, 32 La.Ann. 565; 7 Enc. Pl. & Pr. 418; People v. Tryon, 4 Mich. 665; State v. Farrington, 59 Minn. 147, 28 L.R.A. 395, 60 N.W. 1088.
The capacity or character in which money or other property alleged to have been embezzled was received or held by the accused, and the fact that it came into his possession by reason of such fiduciary relation, should be alleged in the information. 15 Cyc. 519; Com. v. Barney, 115 Ky. 475, 74 S.W. 181; Terry v. State, 1 Wash. 277, 24 P. 447; People v. Cohen, 8 Cal. 42; Sanders v. State, 86 Ga. 717, 12 S.E. 1058; Kibs v. People, 81 Ill. 599, 2 Am. Crim. Rep. 414; Gaddy v. State, 8 Tex.App. 127; State v. Longworth, 41 Tex. 162; Com. v. Simpson, 9 Met. 138; State v. Johnson, 21 Tex. 775; Griffin v. State, 4 Tex.App. 390; Wise v. State, 41 Tex. 139.
A deposit for safe-keeping is one where the depositary is bound to return the identical thing deposited. Rev. Codes 1905, § 5451.
In such case, before embezzlement can be claimed it must be shown that the thing or property has been converted to the depositary's own use. A mere appropriation to one's use is not sufficient. People v. Cohen, 8 Cal. 42; People v. Peterson, 9 Cal. 313; People v. Poggi, 19 Cal. 600; 3 Chitty, Crim. Law, 967; Com. v. Merrifield, 4 Met. 468; People v. Johnson, 71 Cal. 384, 12 P. 261; State v. Griffith, 45 Kan. 142, 25 P. 616.
The information, under our statute, should not merely state the bailment or trust, but should aver the facts and circumstances which make the case embezzlement, and it is also necessary to state the purpose for which defendant was intrusted with the property. Com. v. Smart, 6 Gray, 15; State v. Grisham, 90 Mo. 163, 2 S.W. 223; Gaddy v. State, 8 Tex.App. 127; State v. Mims, 26 Minn. 191, 2 N.W. 492; Wilbur v. Territory, 3 Wyo. 268, 21 P. 698.
Information should allege that defendant agreed to safely keep the property. Calkins v. State, 34 Tex. Crim. Rep. 251, 29 S.W. 1081; State v. Nelson, 79 Minn. 388, 82 N.W. 650; People v. Dunlap, 113 Cal. 72, 45 P. 183; Wabash, St. L. & P. R. Co. v. People, 12 Ill.App. 448; State v. Collins, 62 Vt. 195, 19 A. 368; State v. Walworth, 58 Vt. 502, 3 A. 543.
A wholly unjustified attack by counsel upon a party to a cause on trial before a jury is calculated to prejudice their minds and prevent them from impartially weighing the evidence, and is ground for a new trial. Parker v. Providence Carriage Co. 20 R. I. 378, 78 Am. St. Rep. 878, 39 A. 242; People v. Dane, 59 Mich. 550, 26 N.W. 781; Sasse v. State, 68 Wis. 530, 32 N.W. 849; Kearney v. State, 101 Ga. 803, 65 Am. St. Rep. 348, 29 S.E. 127.
The intent to defraud must be established by the state beyond a reasonable doubt from all the evidence, and not from one act. State v. O'Malley, 14 N.D. 200, 103 N.W. 421; State v. Pilling, 53 Wash. 464, 132 Am. St. Rep. 1080, 102 P. 230; Thomas v. State, 57 Tex. Crim. Rep. 452, 125 S.W. 35; State v. Schaefer, 35 Mont. 217, 88 P. 792; Goldsberry v. State, 66 Neb. 312, 92 N.W. 906; Madden v. State, 1 Kan. 356; Farris v. Com. 14 Bush, 367; Thomas v. State, 16 Tex.App. 539; Black v. State, 18 Tex.App. 124; Luera v. State, 12 Tex.App. 259; Ogletree v. State, 28 Ala. 697.
F. F. Wyckoff, State's Attorney, for respondent.
"That the act or omission charged as the offense is clearly set forth, in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended." Rev. Codes 1905, § 9856.
Certain positive and specific facts are alleged which clearly create the trust relation existing between defendant and the complaining witness. Rev. Codes 1905, §§ 5703, 5704; Wilbur v. Territory, 3 Wyo. 268, 21 P. 698; People v. Johnson, 71 Cal. 384, 12 P. 261.
In such cases, it is not necessary to allege a demand and refusal to return the property, because such are not elements of the offense; only evidence of the wrongful conversion is necessarily in such respect. Com. v. Kelley, 125 Ky. 245, 101 S.W. 315, 15 Ann. Cas. 573; State v. Porter, 26 Mo. 208; People v. Piggott, 126 Cal. 509, 59 P. 31; People v. Carpenter, 136 Cal. 391, 68 P. 1027; People v. Ennis, 137 Cal. 263, 70 P. 84.
Proper objection and exception to improper remarks of the state's attorney during the trial must be made at the time they occur, in order to present the question for review. Territory v. Collins, 6 Dak. 234, 50 N.W. 122.
The intent may be inferred and presumed from the doing of a wrongful and fraudulent act. A person intends the ordinary consequences of his voluntary act, and that an unlawful act was done with an unlawful intent. State v. O'Malley, 14 N.D. 200, 103 N.W. 421; State v. Pilling, 53 Wash. 464, 132 Am. St. Rep. 1080, 102 P. 230; State v. Schaefer, 35 Mont. 217, 88 P. 792.
Defendant, convicted of embezzlement, appeals. The first error assigned is based on objection to all testimony on the ground that the information is insufficient to charge embezzlement. The information was not assailed by demurrer. It will be assumed that the question of sufficiency of the information to charge embezzlement is raised under § 10,745, Comp. Laws 1913. The information recites that defendant "did commit the crime of embezzlement, committed as follows, to wit: that at said time and place the said J. C. Hoff then and there having in his possession and under his control property of Carl Anderson, to wit: $ 120 intrusted to said J. C. Hoff by said Carl Anderson for safe-keeping, for the use and benefit of said Carl Anderson, did wilfully, fraudulently, and feloniously appropriate the same to his own use, a purpose not in the due and lawful execution of his trust, without the consent of said Carl Anderson." The information is drawn to charge embezzlement by a fraudulent conversion by a bailee, under § 9934, Comp. Laws 1913. That statute, omitting unnecessary words, reads: "If any person being intrusted with any property as bailee. . . . fraudulently converts the same or the proceeds thereof to his own use, or secretes it or them with a fraudulent intent to convert to his own use, he is guilty of embezzlement." Appellant asserts that the information is insufficient "for the reason that the charging part is in the form of a recital." This arises from the use of the word "having," the participle. No citation of authority is needed, as no modern authority supports the objection taken. Bishop's New Criminal Procedure, vol. 2, §§ 504, 556-588, that "the participle or even the adverb will suffice when so employed to satisfy the demand for directness," and "the law which is even indifferent to false grammar and verbal inaccuracies does not require for the direct averment any particular part of speech, provided that to the common understanding it is direct."
Counsel then avers that the information is drawn under both §§ 9933 and 9934, relating to different appropriations by persons in different fiduciary capacities, and therefore, that the information is duplicitous. This ground cannot be urged on an objection taken to evidence. It can only be taken by demurrer. No demurrer having been interposed, the defect is waived. State v. Climie, 12 N.D. 33, 94 N.W. 574, 13 Am. Crim. Rep. 211. But the information was not drawn under or to cover any embezzlement except the one charged under § 9934, heretofore quoted.
The next assignment is that "no demand for the return of the property alleged to have been embezzled is set forth." Drawn under this section the information did not need any allegation as to demand, as the statute does not make demand an element of the offense. 15 Cyc. 522 and authorities under note 27 and 7 Enc. Pl. & Pr. 440. "It is necessary to allege a demand made upon the defendant to pay the money or return the property, and his refusal to do so, only when the statute makes such demand and refusal elements of the crime." See also Keys v. State, 81 Am. St. Rep. 63, and note (112 Ga. 392, 37 S.E. 762), and State v. Blackley, 138 N.C. 620, 50 S.E. 310, that "where a statute defining embezzlement does not make a demand necessary to support a conviction, proof of a demand is unnecessary." Arizona v. Monroe, 10 Ariz. 53, 85 P. 651.
Defendant then alleges that "there is no allegation set forth of conversion by the defendant." This is predicated upon the use of the words "fraudulently appropriate" in the information, instead of the statutory terms "fraudulently convert" in the averment that said defendant "did wilfully, fraudulently, and feloniously appropriate the same to his own use . . . without the consent of said Carl Anderson." The objection is unsound. Section 9929 defines embezzlement to be "the fraudulent appropriation of property by a person to whom it has been intrusted," and § 9934 declares that under the circumstances there stated whoever "fraudulently converts the same . . . to his own use is guilty of embezzlement," the very definition of which is the fraudulent appropriation of property by a person to whom it has been intrusted. In other words, the term "convert" means no more than is signified by the term "appropriation" as used in defining this particular crime. See also § 9936 construed in ...
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