116 Cal. 386 | Cal. | 1897
defendant was convicted of the crime of embezzlement, and has appealed from the order denying his motion for a new trial, and from the final judgment entered against him.
The indictment was filed May 29, 1895, and after stating the jurisdictional facts it charged that on or about the twenty-eighth day of May, 1895, the defendant,
When called upon to plead, defendant moved the court to set aside the indictment upon the grounds: 1. That the said indictment was not found, indorsed, nor presented as prescribed in the Penal Code; 2. That the names of the witnesses examined before the grand jury, or -whose depositions were read before the grand jury, were not inserted at the foot of the indictment, nor indorsed thereon; 3. That a person, not a member of the grand jury, nor judge of the court, nor the district attorney, was permitted to be present during the session of the grand jury, and when the charge embraced in the indictment was under consideration, contrary to the provisions of section 925 of the Penal Code,
The motion was denied, and thereupon the defendant demurred to the indictment upon the ground that it did not state facts sufficient to constitute a public offense. The demurrer was overruled, and the defendant then pleaded “not guilty.”
1. The indictment was found by a properly impaneled grand jury, and in our opinion was sufficient in form. It was drawn substantially in the language of section 506 of the Penal Code, which declares that “Every trustee .... intrusted with or having in his control property for the use of any other person, who fraudulently appropriates it to any use or purpose not in the due and lawful execution of his trust, .... is guilty of embezzlement.”
Indictments framed in the language of the statute defining the offense charged have been held sufficient so many times by this court that we deem it unnecessary to cite the cases.
It is true that an indictment must contain “ a statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.” (Pen. Code, sec. 950.)
The indictment here was sufficient to meet the requirements of the statute, and it was not necessary, as claimed for appellant, to allege the date of his “ appointment as guardian and in what court appointed, as well as the issue of letters of guardianship to him and the fact of his taking possession of certain moneys of bis ward; the fact of his filing his account and the settlement thereof; the fact that he was incapable of discharging his trust or unsuitable therefor, or had wasted or mismanaged the estate, and that the court upon due notice given had removed him and had demanded that he should surrender the estate of his ward to the person found to be lawfully entitled thereto.”
2. “ The grand jury is not bound to hear evidence for the defendant, but it is their duty to weigh all the evidence submitted to them, and, when they have reason to believe that other evidence within their reach •will explain away the charge, they should order such evidence to be produced.” (Pen. Code, sec. 920.)
It is shown that the defendant “ appeared as a witness before the grand jury finding the aforesaid indictment, and testified before said body, he not then and there being informed of his legal rights as a defendant witness, and that his name as such witness does not appear among the names of witnesses upon said indictment.” It is not shown, however, and there is nothing in the record to indicate, that he did not voluntarily appear
In People v. King, 28 Cal. 273, it is said: “So far as the motion was based upon the ground that the defendant had testified against himself before the grand jury is concerned, it is only necessary to say that we know of no rule of law which made it illegal for him to testify if he felt inclined to do so, nor do we know of any rule of law which makes the voluntary testimony of the defendant before the grand jury a ground for setting aside the indictment.” And we may add that we know of no rule of law which made it the duty of the foreman, or any member of the grand jury, to inform the defendant of his right to consult counsel before testifying. Besides, the defendant was himself an attorney at law, and had served a term as district attorney of the city and county of San Francisco, and must be presumed to have known what his rights and privileges were as a witness.
It is not claimed that any person not a member of the grand jury was present at the session when the charge embraced in the indictment was under consideration, except the defendant himself while he was being examined as a witness. It is true that the name of defendant, as a witness, was not inserted at the foot of the indictment or indorsed thereon, but it was not necessary that it should be. In People v. Northey, 77 Cal. 618, it was expressly decided that if the defendant has testified before the grand jury, it is not necessary to indorse his name upon the indictment as a witness, and the failure to do so is not ground of motion to set aside the indictment.
It follows that the court did not err in refusing to set aside the indictment or in overruling the demurrer.
3. The most serious question in the case is that relating to the sufficiency of the evidence to justify the verdict.
The facts proved were as follows: Oh January 3,1891, the defendant, who was then the district attorney of the city and county of San Francisco, was duly appointed
In January, 1895, Judge Levy’s term of office expired, and Judge Slack succeeded him. Nothing appears to have been done in the matter of the said estate until May 2, 1895, when an order was made requiring the
The minute order of removal, containing the recital “ and it appearing to the satisfaction of the court that said Page has appropriated to his own use the funds of the said insane person, and that he has rendered no account thereof,” was next introduced in evidence, against the objection of defendant that it was immaterial^ irrelevant, incompetent, and hearsay.
In January, 1896, defendant was arrested in the city of New York, and he stated at the time to the officer arresting him “that he was anxious to return to stand his trial for the offense of which he was accused.”
The above is in substance all the evidence introduced by the prosecution, and at the conclusion of it the defendant by his counsel moved the court to instruct the jury to acquit “upon the ground that the facts proven
The court overruled the motion, and thereupon the case was submitted without further testimony.
It is very evident that the recital above quoted from the order removing defendant from the position of guardian did not constitute any evidence tending to support the charge of embezzlement. At most it was mere hearsay, and Judge Slack, who made the order and was on the stand as a witness, was not asked and did not attempt to state upon what ground the recital was based. It must therefore be entirely disregarded.
Leaving out this recital, it will be observed that there was no evidence showing that defendant ever spent, wasted, or appropriated to his own use any of the money of his ward. It is true he drew out from the savings and loan society most of the money which was on deposit there to the credit of Lichtneger, but this was not a criminal act and did not show a criminal intent to misappropriate the money. He may have intended to deposit the money in some other bank or to invest it in safe securities. The cashier of the savings and loan society, who testified to the withdrawal, stated: “I do not know what Mr. Page did with the money which he withdrew. He may have deposited it in some other bank or some safe deposit box.” So far as appears the defendant at the time of the trial may have still had all the money ready to be paid over on demand to any one authorized to receive it. The fact that he did not pay to the insane asylum the $475 ordered to be paid by Judge Levy does not tend to show a misappropriation of that money. He may have believed that Lichtneger
It is urged for respondent that while “ the fact that a defendant does not take the witness-stand in his own behalf cannot be taken against him by the jury, yet it is in our judgment a fact that should be taken into consideration by this court on the point of the sufficiency of the evidence to justify the verdict.”
We do not think so. A person accused of crime is presumed to be innocent until he is proved to be guilty; and facts and circumstances which cannot be considered by the trial court or the jury in determining as to the guilt or innocence of the accused cannot be resorted to in this court to support a verdict not otherwise authorized.
Again, it is urged that the defendant when arrested was a fugitive from justice, and that this is a circumstance which may be considered in determining as to his guilt. But it does not appear that he was a fugitive from justice. There is nothing in the record to show when or under what circumstances he left San Francisco and went to New York. He may, so far as the evidence shows, have gone on a business or pleasure trip, and have been intending soon to return.
In People v. Royce, 106 Cal. 173, the defendant was the treasurer of the Veterans’ Home Association, a corporation, and was charged with the embezzlement of the balance of a draft received by him, amounting to about two thousand and fifty dollars. He was convicted, and on appeal the judgment was reversed by this court sit. ting in Bank, upon the ground that the verdict was not justified by the evidence.
The court said: “What became of this balance does not appear. Appellant may have had it ready to be produced whenever called for.....The by-laws also provide that all moneys in the hands of the treasurer should be turned over to his successor in office, but it does not appear that appellant ever had a successor in office.....There is no evidence that any demand was
If the verdict in that case was not justified by the evidence, it is quite clear that it was not in this.
We advise that the judgment and order appealed from be reversed and the cause remanded for a new trial.
Searls, C., and Haynes, C., concurred.
For the reasons given in the foregoing opinion the judgment and order appealed from are reversed and the cause remanded for a new trial.
GAROUTTE, J., HARRISON, J., VAN FLEET, J.