49 Neb. 706 | Neb. | 1896
Edward C. Hoekenberger, in the district court of Hall county, was convicted of the crime of embezzlement. He brings the judgment pronounced against him upon such conviction here for review.
On the 7th of February, 1894, a complaint was filed with the county judg'e'of Hall county charging Hockenberger with embezzlement. He was arrested, pleaded not guilty, and waived a preliminary examination. This complaint charged that Hoekenberger, as “secretary of the school board in and for the school district of the city of Grand Island, Hall county, Nebraska,” had embezzled certain of the moneys belonging to said school district. The information on which Hoekenberger was tried charged that he, as “secretary of the board of education in and for the school district of the city of Grand Island, in the county of Hall, in the state of Nebraska,” had embezzled certain money belonging to said school district. To this information the plaintiff in error filed a plea in abatement, to which the state demurred. The demurrer was sustained and the plea dismissed. This action of the court is assigned as error. The plea in abatement alleged that the plaintiff in error had not been accorded a preliminary examination upon the charge in the information, and averred a variance between the complaint on which the plaintiff in error was arrested and the information filed against him. The alleged variance between the charge in the complaint and that in the information will be made apparent when the two are stated thus:
Complaint: “The school district of the city of Grand Island, Hall county, Nebraska.”
Information: “The school district of the city of Grand Island,, in the county .of Hall, in the state of Nebraska.”
We know of no better argument for disposing of this alleged variance than that of the attorney general, which is as follows: “This difference between the com
Another argument insisted on in this connection is a variance between the complaint and the information, in this: The complaint describes Hockenberger as “secretary of the school board,” whereas the information describes Hockenberger as “secretary of the board of education.” The law (Compiled Statutes, ch. 79, subdiv. 14) places all schools organized within the limits of cities such as Grand Island under the direction and control of a board of education, and provides that such board shall elect one of their number secretary. The complaint and the information should charge the same offense, .and charge it so specifically that the person accused may know for what offense he is to be tried. In the case at bar the offense charged to Hockenberger is the embezzlement of the money of the school district of Grand Island while he was secretary of the school board, or board of education, of said school district. There is no substantial difference in charging that Hockenberger was the secretary of the school board of the city of Grand Island and charging that he was secretary of the board of education of the city of Grand Island. When it appears that the charge in the complaint is substantially the same as that set forth in the information, the plea of a want of preliminary examination or a variance between the complaint and the information is unavailing.. (Cowan v. State, 22 Neb., 519.) We think there is no substantial variance between the charge in the complaint and the information either as to what school district the money alleged to have been embezzled belonged, or in
On tbe 18th day of September, 1891, prior and subsequent thereto, Hockenberger was county treasurer of Hall county, and at tbe same time secretary of tbe board of education of tbe school district of tbe city of Grand Island in said county.
Another error assigned is that tbe court erred in refusing to give instructions four and five asked by Hockenberger. These instructions are as follows:
“4. If you find from tbe evidence beyond a reasonable doubt that on tbe 18th of September, 1891, that tbe defendant was tbe duly elected and acting secretary of tbe board of education of tbe school district of the city of Grand Island, and further find that on said date he receipted to tbe county treasurer of Hall county, Nebraska, for tbe sum of $3,000; but should further find that in truth and in fact be only received tbe sum of $2,000 and that be paid the $2,000 over to tbe treasurer of said city, Avho was then, by virtue of his office, tbe treasurer of said school district, then it is your duty to find the defendant not guilty.
“5. Tbe receipts of tbe county treasurer’s records introduced in evidence in this case are only prima facie evidence of tbe receipt of tbe money, and are not conclusive, and may be qualified and explained by other competent evidence and tbe truth shown.”
Tbe state showed, from tbe records of tbe county treasurer’s office, that on tbe 18th of September, 1891, Hockenberger credited himself in bis account, as county treasurer of Hall county, with having paid to himself, as secretary of tbe board of education of tbe Grand Island school district, on that date, $3,000, and it appeared from Hockenberger’s evidence that on that date be only paid to tbe city treasurer of Hall county $2,000. Tbe theory of tbe state was that tbe jury were justified in inferring from Hockenberger’s actions that be bad on said date,
We think, also, that the court erred in not giving instruction 5 as asked, because the records of the county treasurer’s office introduced in evidence were only prima facie evidence that Hockenberger, as secretary of the board of education, had received the sum of $3,000 from the county treasurer. These records were not conclusive evidence that he had actually received $3,000, and Hockenberger urns entitled to have the jury so instructed. (Morse v. Rice, 36 Neb., 212.) As already stated, the court had told the jury that the county treasurer’s records were evidence from which they might infer thai Hockenberger, as secretary of the board of education, had received from himself, as county treasurer, the full sum of $3,000. This instruction standing-alone left the jury at liberty to conclude that these records in the county treasurer’s office — the receipts from Hockenberger as secretary of the board of education to himself as county treasurer for $3,000 — were conclusive evidence that as
Reversed and remanded.