Zink v. State

• Decision Date: 17 February 1892
• Citation: 51 N.W. 294,34 Neb. 37
• Parties: ZINK v. STATE.
• Court: Nebraska Supreme Court

34 Neb. 37

51 N.W. 294

ZINK

v.STATE.

Supreme Court of Nebraska.

Feb. 17, 1892.

Syllabus by the Court.

1. In a prosecution under section 121 of the Criminal Code for embezzlement as an attorney at law, the fiduciary character of the accused, which is the distinguishing feature of the crime of embezzlement, should be distinctly charged.

2. The right conferred upon the accused in a prosecution for a felony, by section 436 of the Criminal Code, to a copy of the indictment or information and one day to prepare for trial, is a substantial right, to deny which is error.

3. When an information for a felony is insufficient for want of a material averment, it is error for the trial court to permit an amendment supplying such deficiency, and to require the accused, over his objection, to proceed with the trial immediately, refusing him a copy of the amended information, and the statutory time to plead thereto.

4. Whether an information may be amended, without the consent of the accused, by adding thereto material allegations without which it fails to charge a crime, not determined.

Error to district court, Lancaster county; CHAS. L. HALL, Judge.

One Zink was convicted of embezzlement, and appeals. Reversed.Reese & Gilkeson, S. H. Sornborger, Lawrence Heiskell, I. W. Lansing, and B. B. Willey, for plaintiff in error.

Geo. H. Hastings, Atty. Gen., for the State.

POST, J.

The plaintiff in error was convicted in the district court of Lancaster county on the charge of embezzlement as an attorney at law, and seeks a reversal of said judgment on account of alleged errors, of which it is necessary to notice but one. From the records of the case it appears that the accused was arraigned on the 18th day of April, 1891, and entered a plea of “not guilty” to the information, and the trial thereof set for the 27th day of the same month. On the last-named day the case was called for trial, when the county attorney, in behalf of the state, asked, and, over the objection of the accused, was given, leave to amend the information by interlining therein the following: “The said Howard W. Zink being a duly-admitted attorney at law to practice in the various courts of the state of Nebraska and of Lancaster county.” Accused then objected to being tried until he had been furnished a copy of the amended information, and demanded the statutory time thereafter in which to prepare for trial, which was refused, and he was immediately put on his trial without further arraignment or plea to the information as amended. The amendment allowed was a material allegation. We do not understand the attorney general to contend that the information was sufficient to sustain a conviction without the amendment. In an information under section 121 of the Criminal Code the fiduciary character of the accused, which is the distinguishing feature of the crime of embezzlement, must be distinctly charged. Whart. Crim. Law, 1940; 2 Bish. Crim. Proc. 232 a. Where the statute denounces the act or omission of a particular class or description, only such facts, by way of addition or description, must be averred as to bring the accused clearly within the statute, and show him to belong to the special class designated. Bass. Crim. Pl. 128; People v. Allen, 5 Denio, 76;People v. Tryon, 4 Mich. 665; Com. v. Simpson, 9 Metc. (Mass.) 138; Kibs v. People, 81 Ill. 599. The information upon which the accused was tried was essentially different from the one upon which he had been arraigned, and to which ...