15 Wend. 581 | N.Y. Sup. Ct. | 1836
By the Court,
The exception taken to the omission of the court to charge the jury that the offence as proved, did not amount to the crime of embezzlement, seeks to draw the whole case into question, and is perhaps too broad to raise in proper form any point presented by the argument; but if it were in due form, the objections cannot avail. The statute is, that if any servant of any private person, &c. shall embezzle or convert to his own use, without the assent of his master or employer, any money, &c. which shall have come into his possession or under his care by virtue of his employment, he shall be punished in the same manner as a larcener of the like sum. 2 R. S. 678, § 59. It is contended for the prisoner that, to show an embezzlement or conversion within the statute, there must have been proof of breaking or opening the letter, or of flight, &c. It is perfectly clear that neither is necessary. A fraudulent conversion in any way is enough ; and there is no prescribed set of circumstances by which the fraud is to be made out. .There is nothing in the objection that this conversion could not be said to have been “ without the assent of his mistress,” on the ground that Mrs. Mann had no actual
The point made, that a felonious or criminal intent must be proved, is assented to by the district attorney, who properly insists that proof of a fraudulent conversion is establishing the felonious or criminal intent within the objections raised. Such conversion was abundantly shown. In short, the offence, as proved, is exactly within the statute. It is intended to provide for a fraudulent conversion of money or goods by a- servant, when they are delivered to him as such, either by his master or mistress, or in their behalf, or by a stranger. That was but a breach of trust at common law, because the money or goods came to his hands by delivery. The statute intended to convert such a breach of trust into a crime.
As to the motion in arrest and the judgment of the sessions-thereupon, there are two answers : l.The matter is not properly here—a bill of exceptions can be taken only at the trial; and 2. Had the objections been properly raised and properly brought here, there is nothing in them. As to the first ground: a writ of error at common law could not reach any objection arising dehors the record, unless perhaps in the single case of diminution, or error in fact. For the right now so commonly exercised, of bringing up the merits from the trial by writ of error we are indebted to the statute, 1 R. L. of 1813, p. 326, $ 6. It was brought down from the previous revisions,
In any and every view, the court below were right in overruling what was miscalled the motion in arrest. The true course would have been, to have disregarded it for want of jurisdiction. I ought not to let this occasion pass, without noticing that the office of the bill of exceptions has been here ' entirely mistaken in several particulars. First, the testimony for the people is detailed with great particularity, as if we were to judge of its weight and effect in establishing the leading facts on which all the questions of law were supposed to turn. There was no dispute about several of the main facts. When this is so, they should be stated succinctly as the effect of the proof. Denison v. Seymour, 5 Wendell, 103. So if there be a plain defect in the proof, which defect is the foundation of the point raised, that can be mentioned. If the point is to be made that the proof is legally sufficient to establish a fact assumed by the court, and put by them as proved to the juryj' more detail is warrantable; and so if it be a question whether there be proof sufficient to carry the cause to the jury : but unless the facts relate to some legal exception properly taken at the trial, even the statement of them in the charge to the jury, and the commentaries upon the evidence made by the judge, may—nay, should be stricken out on settling the bill. Ex parte Crane, 5 Peters, 190, 197, to 200.
Had the points been distinctly raised at the trial as they arc now presented in argument, the bill might have been somewhat abridged in its history of the people’s case; though I admit not a great deal, if we allow full effect to the exception as taken, and hold the points to be all properly involved in the general motion made at the trial for instructions to acquit. A general objection of the latter kind, however, is hardly ever available in a bill. An objection usually arises, where the main facts are made out in proof, but there is some particular defect relied upon by counsel. This they are required to point out, because it may, on being mentioned, be at once obviated
I am aware of the great difficulty of courts below in trimming the case down to the neat points which should always, if possible, be presented.- There is a frequent anxiety on the part of counsel to place every thing in a bill which is at all favorable to their clients in any view, and between the fear of making the case come short of what it should be, and the great respect so properly entertained for the zeal of counsel, and the real indulgence due to them in the exercise of their arduous and useful office, there is every tendency to relaxation. In settling many of these bills myself, with a full understanding, as I thought, of the general rules upon which it should be done, I have yet constantly felt the difficulty of their application, from the causes mentioned, and others inherent in this branch of judicial business. I am, therefore, far from speaking in a spirit of censure, when 1 notice the irrelevant matter which has found its way into this bill. The whole occupies no very great space, and is least of all attributable to a desire in any one concerned to swell folios for the sake of fees. But it can be seen how easily the practice may be abused to a very inconvenient, not to say an oppressive extent, if the courts who are to settle these bills prefer leaving matter to stand,where there is a mere doubt of its relevancy, when it is their duty to repress every attempt at obvious redundancy. In the court of review the line of duty is plain. Exceptions not properly presented cannot be regarded," even in criminal cases, 2 Chit. Gen. Pr. 593, and the cases there cited in note (e); and useless prolixity should be discouraged in every department of legal practice.
The sessions are advised to sentence the prisoner, if they have not already done so.