139 Mich. 442 | Mich. | 1905
Frank A. Parent was elected treasurer of the township of Monguagon, Wayne county, at the spring election in the year 1902, and qualified, giving the required bond. About April 1st he appointed Sanders, the defendant, his deputy, without, however, obtaining the consent of his bondsmen, as required by 1 Comp. Laws, § 3934. ~ Sanders took the oath of office, and acted in an official capacity, under the authority and instruction of Parent, until his arrest for embezzlement on May 23, 1903. He collected all of the money due the township, deposited a portion of it in the bank in the name of Parent, treasurer, and kept a portion in his possession, paid township orders partly by money not deposited and.partly by checks on the bank, signed by him in the manner authorized by Parent. It is said that after his arrest he admitted that he had used township funds for his own purposes to the amount of more than $3,000. The prosecutor claims that the proof shows the amount to be over $5,300. The defendant was convicted, and has appealed.
“ (11612). Section 1. The People of the State of Michigan enact, That if any person holding any public office in this State, or if the agent or servant of such person knowingly and unlawfully appropriates to his own use, or to the use of any other person, the money or property received by him in his official capacity or employment, of the value of fifty dollars or upwards,' the person so offending shall be deemed guilty of a felony, and shall, upon conviction, be punished by imprisonment in the State prison, at hard labor, not to exceed ten .years, or by fine not exceeding five thousand dollars, or both said fine and imprisonment. ”
Whether the treasurer might or did lawfully appoint a deputy, and whether he had a lawful right to permit respondent to act as his representative, it is undeniable that he authorized his acts, and respondent acted for him in his name. That, as between them, he acted as the treasurer’s agent, cannot be denied, and as between them the relation of principal and agent existed. He has consented to act as such agent, has so acted, and in fact was such agent; and he has fraudulently converted the money to his own use, even if it could be said that the law did not provide for a deputy or agent, and contemplated neither. His liability under this statute is not affected by
The court properly refused to charge that the defendant could not be found guilty if he paid out for township orders, or had deposited in the bank, all of the moneys received by him in cash for the collection of taxes. It excludes the prosecutor’s claim that he drew from the bank and embezzled the money. He did not err in refusing to say to the jury that “they alone were the sole judges of the law.” Such is not the law.
Question is made over the suggestion by the prosecutor that he would show the defendant’s dealing with village money. It was proper to claim and show that by reason of his default as village treasurer the respondent found it necessary to replenish that account, which he did by funds drawn from the township account.
An exception was taken to the following argument by the prosecutor:
“We admit, gentlemen of the jury, that Mr. Parent perhaps committed a gross indiscretion — perhaps the greatest indiscretion in his life — when he put one single bit of trust in Mr. Sanders, because Mr. Sanders did not deserve that trust. He was a thief, and Mr. Parent did not know it.*446 That has been the statement Mr. Parent has made in this case. Mr. Parent thought Mr. Sanders was honest. He knew Mr. Sanders’ father for a long time before, and he knew Mr. Sanders’ father was an honest man, and he had known Mr. Sanders from boyhood up, as he said on the stand. He knew he had been interested in many enterprises, and had traveled over all parts of this country; that he had an experience in business that Mr. Parent had not; and, honest, simple old man that he was, he put his trüst in this young man here — in this young thief, who stole the money from the township of Monguagon, and betrayed the trust that Mr. Parent reposed in him; made him his associate in business.”
The argument was a legitimate one. It was unnecessary to speak of respondent as a “young thief,” but he was on trial for an offense equivalent to larceny. The prosecutor was insisting that he was an embezzler, and the language implied nothing more than such contention.
The allusion to the forgery of Parent’s name could not be misunderstood, and we think should be classed with the other statement, as unnecessary, but harmless to the respondent, though probably not to the prosecution. The average juror ordinarily resents vituperation of a defendant, and it generally reacts upon him who indulges in it.
There are several assignments which we do not discuss because they involve no important question. As to some of them, there is no reference either in the record or brief to the page where they appear in the record. This is a hazardous omission, for the court cannot be expected to supply the omission through a search of the record.
We find no error, and the judgment is affirmed.