21 S.D. 121 | S.D. | 1906
On an information filed in the circuit court of Lyman county, by the state’s attorney thereof, the plaintiff in' error was tried and convicted of the crime of embezzlement. Before the trial, counsel for plaintiff in error, who we shall hereafter denominate the “defendant,” moved the court to set aside the information upon the ground “.that the same is not found and presented’ as prescribed by law, in that the information in the justice court, on which the information herein is predicated, charges two separate and distinct offenses.” This motion was properly denied for the reason that the complaint in the justice court and the information upon which the' defendant was tried charged, substantially the same offense: namely, the embezzlement of “one double-seated carriage of the valué of seventy-five dollars ($75.00) and one set of double harness of the value of fifteen dollars ($15.00).”' The contention of the defendant that the complaint in the justice cou’rt charged two offenses is not tenable. There is clearly but one offense charged therein and the addition of the words, “and in the manner aforesaid did take, steal, and carry away said buggy and double harness,” is clearly unnecessary and immaterial and may be regarded as surplusage, the offense of embezzlement having been fully charged in the body of the complaint. The information contains substantially the same allegations as the complaint with the words above quoted omitted. The information, therefore, was properly based upon the complaint in the justice court and the provisions of the statute relating thereto were fully complied with.
It is disclosed by the record -that the defendant and one Riley hired the carriage and harness, alleged to have been embezzled, from the prosecuting witness, Bucklin, and on the trial evidence was introduced tending to prove that the defendant, at the time of hiring the rig, left with said Bucklin a saddle of the value of $40 or $45, as security, and that the saddle was subsequently sold
It is further contended by the defendant that the court .erred in íefusing to give the following instruction requested by the defendant before the court had concluded its charge to the jury: “You are further instructed that,, if the property was converted by any other person than the defendant, • you cannot find the defendant guilty unless you find beyond a reasonable doubt that it was embezzled with the knowledge of the defendant.” At what time this instruction was requested does not affirmatively appear, but from the statements made in the abstract we may reasonably presume that it was near the close of the court’s charge and might properly have been refused as not being presented in time to enable the court to give it proper consideration. It does not affirmatively appear that the instruction was applicable to this case as > the evidence given at the trial is not set out in the abstract and is not, therefore, before us; in such case this court will presume that instructions refused by the court were refused because they were not justified by the evidence, where there is no evidence in the abstract to support the same. Haggarty v. Strong, 10 S. D. 585, 74 N. W. 1037. But in any event the refusal to give the instruction did not constitute reversible error for the reason that the court fully instructed the jury that they must be satisfied beyond a reasonable doubt that the defendant, either alone or in connection with another person, did actually embezzle the property, and, if they had a reasonable doubt of the defendant’s guilt, they should
After the jury had retired to deliberate upon their verdict they were recalled into court and it, in effect,- withdrew from their consideration all evidence relating to the saddle and instructed them to determine the case without any reference to- that evidence. It is contended by the defendant that this instruction was erroneous. In our opinion the court committed no error in withdrawing this evidence from the jury, as the fact that the saddle was so left did not constitute any defense to the charge of embezzlement contained in the information. The question for the jury to determine, as before stated, was, did the defendant embezzle this property, either alone or in connection with dnother, and the fact that he left the saddle as security constituted no defense to the charge. In People v. De Lay, 80 Cal. 52, 22 Pac. 90, it appeared that the defendant had given to the parties a written indemnity to pay a certain judgment recovered by them against the assignor, who had made an assignment to the defendant for the benefit of her creditors, and this was urged as a defense to the charge of embezzlement, but the learned Supreme Court of California in speaking of this indemnity says: “The fact that Xunan and Lowney took a written indemnity from the defendant in no way affects the guilt or innocence of the defendant, who is charged with embezzling Tie property intrusted to him for certain purposes by Mrs. Furlong.” If such a defense was admissible as a defense to an action it would be quite difficult to convict a town, city, or county treasurer, an officer of a hank or corporation, etc., of embezzlement, as all or nearly all of such officers are required to give security for the faithful performance of their duties and to pay over all moneys intrusted to them, yet, so far as our researches extend, the fact that the party charged with embezzlement has given such security has not been held to constitute any defense to the charge. The court was clearly right, therefore, in withdrawing- from the jury all the evidence relating to the ..saddle. The fact that such evidence had been admitted on that subject in the course of the trial which should have been excluded did not preclude the court in its charge from excluding this immaterial evidence so admitted from the consideration of the jury.
It is further contended by the defendant that the evidence was insufficient to- support the verdict. This contention cannot be considered by this court for the reason that all the evidence is not set out in the abstract, and the evidence, therefore, not being before us, cannot be reviewed by this court.
Finding no -error in the record, the judgment of the court below and order denying a new trial are affirmed.