111 Neb. 175 | Neb. | 1923
This is a proceeding in error from the conviction of Houghton W. Kenyon on an indictment charging him with taking, receiving and converting to his own use 1,600 shares of the capital stock of the Bankers Fire Insurance Company, of the value of $16,000, the property of Otto H. Brockman and the Ceresco State Bank, knowing that it had been embezzled, and intending to deprive the bank and said Brock-man of the same.
The theory of the state was that Maixner, being the cashier of the Ceresco State Bank and having access to its note case and vault, embezzled the stock in question, and that Kenyon received and used it along with him in putting throfigh the acceptance of the $50,000 note above described, and in discharging an indebtedness upon which both he and Maixner were liable. The evidence strongly indicates that Kenyon not only knew that the stock belonged to Brockman, but knew that it had .been embezzled, knew all about' the dishonest deal, and in fact connived with Maixner to put the deal through for their joint benefit.
The evidence adduced is undoubtedly sufficient to sustain the verdict and. judgment in the trial court, provided the taking and receiving on the part of the defendant above set forth is sufficient to constitute a taking and receiving according to the statute defining the' crime charged, and provided of course that the trial was properly had, the evidence properly received, and the jury properly instructed.
The Nebraska cases cited by the defendant, beginning with Chaplin v. Lee, 18 Neb. 440, and ending with Nelson v. State, 86 Neb. 856, do not support his contention that the facts which the state’s evidence tended to' prove were not sufficient to justify a finding that there was an embezzlement. In. the first of these cases there was no proof of the existence of the fund charged to have been embezzled. In another there was only a showing of indebtedness. And in the others proof was totally lacking as to false appropriation, as to felonious intent, or as to felonious adverse holding. No such absence of proof is found here. Evidence was introduced tending to prove every essential element of an embezzlement by Maixner. Nor should there be any doubt that the defendant did the crime of receiving if he knew that the stock attached to the note had been embezzled. For, whether he signed as a principal or surety, he used said stock and. received a benefit from it. The benefit to
Defendant assigns as error that he was denied a continuance. Ordinarily the denial of a continuance is within the sound discretion of the trial court and no reversal will be awarded therefor unless it is clear that there has been an abuse of such discretion. Complaint is made that certain witnesses, Burtch, Brockman and Johnson, changed their testimony in'material respects; that Burtch testified that the $50,000 note was given for other notes signed by Kenyon, though omitting to so testify on the previous trial; that Brockman testified that certain conversations were had with Kenyon or with Maixner and Kenyon together, when before he described the same as had with Maixner alone; and that Johnson testified that he had seen the stock in the Ceresco State Bank, though he testified before to the contrary. While this is disputed, it is quite apparent that there were material differences in the testimony of these witnesses. But what if there were? Granted, for the sake of the argument, that defendant was surprised; and that if he had been given time he could have produced testimony to the effect that the general reputation of these witnesses was bad, this would not have been enough to entitle him to a new trial. For a new trial is not ordinarily granted upon newly discovered evidence which merely tends to discredit some of the state’s witnesses. Ogden v. State, 13 Neb. 436. Defendant had the benefit of impeachment of said witnesses by the record. He makes no showing of new evidence which would be likely, in the opinion of the court, to lead the jury to a different conclusion than that which it reached. The verdict and judgment-are not to be set aside on this score.
When the trial was being had, Maixner was in the penitentiary serving a sentence for forgery, to ’which offense
It is urged with much insistence that the trial judge committed reversible error in instructing the jury, first in refusing to specially warn' it against Maixner’s testimony, again in charging that the jury might take into account such things as are matters of common knowledge and experience, though not testified to, and finally in instructing that the matter of suretyship was immaterial except as between Kenyon and Maixner unless the former’s intention was made known to the payee of the note at the time that it was signed. In view of the fact that Maixner was called by the defendant, as above pointed out, it is evident that the defendant is not in a position to complain because an instruction directing scrupulous care hi weighing Maixner’s testimony was not given. Indeed, the giving of such an instruction would have been highly improper, and a real
A more serious objection arises in the court’s instruction No. 12. It is as follows:
“You are instructed that every negotiable instrument is deemed prima facie to have been issued for a valuable consideration, and every person whose signature appears thereon to have become a party thereto, for value. In this case it appears on the face of the note that the defendant signed the $50,000 note as a maker, and it is immaterial, except as between Maixner and Kenyon, that the defendant was a surety for said Maixner unless his intention to be only a surety was made known to the payee of the note at or before the time of signing the note.”
Supposing that the defendant was merely a surety signer. In such case he might have been less, or more, careful to ascertain whether collateral went with the note and whether or not he was participating in using Brockman’s stock as security. To remove inquiry as to his suretyship in all respects from the jury would possibly deprive him of proper consideration in this respect. This is the contention of defendant. However, it is a contention of doubtful force. For it seems obvious that a person primarily liable on notes ■which it was necessary to replace would sign a note for that purpose as a matter of course and with little investigation or delay, while one who loaned his credit without expectation of profit and merely for accomodation would be particularly careful to know that there was collateral attached which would make his signing less hazardous. The court further observes in this connection that, though the defendant was interrogated at great length by his own counsel, he at' no time testified that he examined the note signed by
Not only this, but, as we analyze the instruction, its object was to advise the jury that whether the defendant was a surety or a principal cut no figure if he knew that the note carried the stock as collateral and that the stock had been embezzled. It was not intended to keep the matter of suretyship from the jury in^so far as that matter might have a bearing on the question of the knowledge of the defendant as to the character of the collateral, nor could that result have followed; for Kenyon was permitted to testify at .length to the effect that he was only a surety. And the court in other instructions told the jury that they should consider all of the evidence in determining whether every essential element of the crime, including that of knowledge of the embezzlement, had been established. Where the instructions as a whole correctly advise the jury as to the law upon a point in issue, a single instruction which might by itself be misleading will not be permitted to work a reversal of the judgment.
Misconduct on the part of counsel for the state is next assigned as error for which the judgment of the court should be reversed. One ,of the attorneys for the.state stated in his argument that the indictment charged Mr; Kenyon with receiving to his own use or benefit property which had been embezzled by Charles Maixner, and went on to say: “When he did that fraud, that was one of the most damnable propositions ever perpetrated upon that farmer up at West Point.” Thereupon defendant’s counsel-broke in with the following objection: “Object to that; I except to the remark of counsel that it was- one of the most damnable frauds perpetrated on Otto Brockman who bought that stock.” The court then stated that he thought the objection was properly made and thereupon another of the state’s attorneys said: “If the court makes that ruling, we will ask that the'jury disregard it.” The court then said; “The jury will understand that in the excitement or argument, if counsel discusses questions, stating them as facts concerning which
There are further complaints of statements made by counsel during the course of the argument. But in one of these the fact is denied, and in the others defendant failed to preserve exception. We do not regard them as of sufficient importance to discuss. Statements of fact concerning matters outside of the record should not only be avoided, but will frequently work reversal. In many states the rule is that such statements are presumed to be of prejudicial effect. Occasionally the trial court can do nothing to cure the error or to dispel the prejudice thus created in the mind of the jury. In such cases there is nothing to do but to send the case back for a new trial. However, in many instances
A copy of the $50,000 note in question was received in evidence on the theory that the original was lost and could not be produced. The defendant contends that no sufficient foundation was laid for the introduction of the copy, and that its reception was error.
At the outset, in considering this assignment, it is to be noted that the defendant himself admits that he signed such a note — of the same date and amount, to the same party, and with Maixner. He only asserts that he signed merely for the accomodation of Maixner, and that he did not see on' the face of the note the notation of Brockman’s stock as collateral; his excuse being that he had implicit faith in Maixner and did not look. Under these circumstances the reception of the evidence cannot be held to have been erroneous, particularly since in such a matter the court is vested with a generous discretion. If the substance of the
But we think that the foundation was otherwise sufficient. Burtch had the note at the preliminary hearing, and took it away at that time. He had searched for it and inquired for it in all quarters where he thought it might be found. It was last in his possession, so far as' anybody knows, and he testifies that he may have destroyed it when he moved to Omaha or he may have misfiled it. He further testified that he would say that it was either lost or destroyed. A wide discretion is permitted to the trial court in the matter of foundation required for the introduction of secondary evidence of the contents of a writing lost or destroyed. Hapgood Plow Co. v. Martin, 16 Neb. 27; Bradstreet v. Grand Island Banking Co., 89 Neb. 590. All of the foregoing leads to the conclusion that the foundation laid was sufficient and that the copy of the note was properly received.
From a full consideration of the voluminous record and briefs, we are of opinion that the district court had the right view of the issues, and correctly and capably submitted them to the jury. We hold, too, that there was no reversible error committed upon the trial. The judgment is therefore
Affirmed.