11 Nev. 287 | Nev. | 1876
By the Court,
This is a proceeding upon habeas corpus. The petitioner alleges that he is illegally restrained by the sheriff of Hum
But,the petitioner contends that at all events he cannot be deemed guilty of both offenses, embezzlement and obtaining money by false pretenses; for, he says, he could not be guilty of embezzlement unless he had authority to collect the money, and if he did have such authority he was guilty of no false pretense. We think this is true, and that it devolves upon this court to say upon which charge he can be held, if upon either. In our opinion the testimony shows that he was guilty of embezzlement even upon Ragsdale’s statement of the extent of his authority. He was Kagsdale’s assistant, but he was the servant of the Central Pacific Kailroad Company, and if he had no general authority to collect all bills due the company at Winnemucca, he had been held out to the public by Kagsdale and the company as having such authority, and payment to him was, so far as third parties were concerned, payment to the company. He was thus enabled by reason of the trust reposed in him by the company, and solely by reason of such trust, to collect the company’s money and discharge its debtors from their obligation to the company. We think it may be fairly said that he was entrusted by the company with the money which he collected under such circumstances, and that at all events it would not lie in his mouth to deny that he had the authority which he claimed in order to collect the money, and which the confidence reposed in him by his employer enabled him to claim with success. But in truth he does not deny his authority. He insists that he had the authority, and that he was guilty of embezzlement and nothing else. And he claims that he is entitled to be discharged, because Judge Bonnifield’s commitment for obtaining money under false pretenses cannot be sustained on the testimony, and because that order committing him for an incompatible offense, ipso facto, discharged him from further custody under the warrant for embezzlement. The last proposition we cannot concede. It may be true that Judge Bounifield ought to have made an order discharging
The petitioner now argues that his objection to the testi-mony offered on his trial was erroneously sustained. Ho says the embezzlement of money consists in the wrongful conversion of it after its collection and not in collecting it. That he was guilty of but one embezzlement in converting the money, no matter from how many different parties he collected it, and, consequent!}', that his acquittal on one indictment is a bar to any further prosecution. There is no doubt, if his crime ivas embezzlement, and the money was all collected before any portion of it was converted, that he committed but one offense. But there is nothing to show
Counsel for petitioner has cited the court to the text of Bishop’s Criminal Law, and to the cases of Hite v. The State (9 Yerger, 357), and Durham v. The People (4 Scam. 172), as authority for the proposition that an acquittal on one indictment is necessarily a bar to any other indictment, when the same proof would support both. From this they argue that the facts proved upon the present charge against Eicord would have supported the indictment upon which he was acquitted, and consequently, that he never can be convicted on such facts. But the cases cited do not sustain the proposition upon which this argument is built. A plea of former acquittal, before our statute, was required, in addition to a recital of the record in the former case, to aver that the offense charged in the two indictments was, as matter of fact, the same identical offense, and that the defendant in both was the same person. In the Tennessee case this was the form of the plea, and it is to be presumed that it was pleaded in the same form in the Illinois case. In both cases the question before the court Avas purely a question of Iuav, Avhether the plea Avas Avell pleaded. In Illinois, the question was raised by a demurrer to the. plea, and, of course, the test of its sufficiency, admitting it to be true in point of fact, was whether the same testimony would support both indictments. The court held that it Avould, and sustained the plea. In the Tennessee case, the commonAveallh replied nul iiel record, and the issue Avas tried by the court, treating the replication as if it had been a demurrer, The court held, on comparison of the tAvo indictments, that the same evidence would not support both, and overruled
The facts stipulated in this ease do not establish, or tend to establish, the identity of the offense with which the petitioner is now charged with that of which he was acquitted.
Let the prisoner be discharged from the warrant for obtaining money on false pretenses, and remanded upon the warrant for embezzlement.