Winkelmann v. State
| Decision Date | 26 October 1925 |
| Docket Number | 24473 |
| Citation | 205 N.W. 565,114 Neb. 1 |
| Parties | HENRY W. WINKELMANN v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Hitchcock county: CHARLES E ELDRED, JUDGE. Affirmed.
AFFIRMED.
J. F Ratcliff and Scott & Scott, for plaintiff in error.
O. S Spillman, Attorney General, and Harry Silverman, contra.
Heard before MORRISEY, C. J., DEAN, DAY, GOOD, THOMPSON and EBERLY, JJ.
On an information which charges that he, "then and there being the cashier of the Farmers State Bank of Culbertson, Nebraska, a banking corporation, organized and doing business under the laws of the state of Nebraska, did, then and there, wilfully and feloniously embezzle, abstract and misapply the sum of $ 1,000, being the moneys, funds and credits of said banking corporation, with the intent to injure and defraud said banking corporation," defendant was convicted and sentenced to a term in the penitentiary. As plaintiff in error, he presents to this court for review the record of his conviction.
The propositions relied on for reversal are: (1) That the trial court committed prejudicial error in overruling defendant's motion to quash, and in overruling the motion to require the state to elect on which charge of the information it would rely for a conviction; that is, whether for abstraction or embezzlement or misapplication of the funds of the bank; (2) that error was committed in permitting Walter D. James to appear as an attorney for the state, over objection of the defendant.
The prosecution is brought for a violation of section 9638, Comp. St. 1922. That portion of the statute applicable to the instant case is as follows:
"Every * * * cashier * * * of any banking company, who shall embezzle, abstract or wilfully misapply any of the moneys, funds or credits of such company, * * *with an intent in either case to injure or defraud such company, * * * shall be confined to the penitentiary not less than one year nor more than ten years."
It will be observed that the information is in the language of the statute, except that the several acts are charged conjunctively, instead of disjunctively. Defendant insists that the information charges him: First, with embezzlement of the moneys of the bank; second, with abstraction of the funds of the bank; and, third, with misapplication of the funds of the bank, with an intent, in each case, to defraud.
Counsel for defendant cite and rely upon a number of decisions rendered by the circuit and district courts of the United States, which construe and interpret the meaning of section 5209, Revised Statutes of the United States. That statute is very similar to section 9638 of the Nebraska statutes. The cases referred to seem to hold that embezzlement, abstraction and misapplication of funds of a national bank by one of its officers are three separate and distinct offenses, and that they may not be joined in one count of an indictment. The supreme court of Texas, in Todd v. State, 89 Tex. Crim. 99, 229 S.W. 515, construes a similar statute, as do the federal courts. Were the question an open one in this state, we might look with favor on defendant's contention. In this state, however, it has long been the rule, supported by numerous decisions of this court, that a statutory offense may be charged in an information in the language of the statute, and that, where a statute creates a crime and enumerates a number of ways in which it may be violated, the information may charge that it was committed by all the enumerated ways, provided they are not inconsistent with or repugnant to each other.
Among the decisions of this court supporting the rule are Brown v. State, 107 Neb. 120, 185 N.W. 344; Smith v State, 109 Neb. 579, 191 N.W. 687; State v. Leekins, 81 Neb. 280, 115 N.W. 1080; Hase v. State, 74 Neb. 493, 105 N.W. 253; Bartley v. State, 53 Neb. 310, 73 N.W. 744; Mills v. State, 53 Neb. 263, 73 N.W. 761. ...
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