147 N.W. 407 | N.D. | 1913
Lead Opinion
(after stating the facts as above). The first assignment of error, or point one, of appellant’s brief, is directed to the action of the court in overruling the demurrer to the information. It is alleged that more than one offense is charged, and that the information therefor violates § 9851, Pev. Codes 1905. The information begins by informing the court “that heretofore, to wit, on the 3d day of January, 1911, in the county of Burleigh, and state of North Dakota, one George L. Bickford, late of said county and state, did commit the crime of embezzlement in the manner following, that is to say: Count one: That at said time and place the defendant, George L. Bickford, was, and ever since on or about the 4th day of January in the year nineteen hundred nine, had continuously been, the duly elected, qualified, and acting; state’s treasurer of the state of North Dakota, and during such period and in his said term of office as such state treasurer of the state of North Dakota, and by virtue of'and in the course of his official duty as such state treasurer, he, said George L. Bickford, collected, received, obtained, and had in his possession and custody and under his control as such state treasurer certain public money, bank notes, checks, drafts, bills of exchange, and valuable securities of the aggregate sum and value of sixty thousand four hundred thirty-eight dollars and eleven cents, and all of which said money, bank notes, checks, drafts, bills of exchange, and valuable securities were then and there the property of the state of North Dakota; and he, the said George L. Bickford, so having in his custody and under his control as such state treasurer, as aforesaid, the piiblic money, bank notes, checks, drafts, bills of exchange, and valuable securities aforesaid, on, to wit, the third day of January,
Count two begins with the words: “And your informant in the name and by the authority of the state of North Dakota further informs this •court: That on, to wit, the third day of January, 1911, in the county •of Burleigh, state of North Dakota, the said defendant, George L. Bickford, did commit the crime of embezzlement in the manner following, that is to say:” Then follows language identical with that of the first count, with the exception that, instead of charging that the said Bickford appropriated and converted the public money, bank notes, checks, etc., “to his own use, in violation of his said official trust, and thereby did embezzle the same,”- it charges that he appropriated and •converted the said moneys, etc., “to the use of the First State Bank of Bowbells,”'etc., “and thereby did then and there feloniously embezzle the said public money, bank notes,” etc.
The third count is the same as the foregoing, except that it charges that the said Bickford did “loan the said public money,” etc., “to the First State Bank of Bowbells,” etc., “and then and there did feloniously embezzle the said public money,” etc.
We are of the opinion that only one offense is charged. It is true that each count is complete in itself. It is, however, also true that the information begins with the general charge of the crime of embezzlement, which it says was committed “in the manner following, that is to say,” and that then the separate counts follow. It is quite clear to us that this general allegation charges the one general crime of embezzlement, and that the several counts are merely various statements of the ways in which the said general crime was committed.
Sec. 9204, Bev. Codes 1905, defines embezzlement as “the fraudulent appropriation of property by a person to whom it has been intrusted.” Sec. 9205 provides: “If any county treasurer or other officer or
The same considerations and conclusions apply to the second point, that the verdict does not find the defendant guilty or not guilty, and is indefinite because of the three counts. The verdict was “guilty of embezzlement as charged in the .information.” As we have before said, there was but one offense charged, and that was embezzlement; embezzlement, it is true, by a public officer, but every count contained this allegation. In the case of Mills v. State, 53 Neb. 263, 73 N. W. 761, the statute was identical with § 9205, Rev. Codes 1905. The information was in four counts, and the trial was on two of them; the one alleging embezzlement of $6,000 by conversion to the embezzler’s
Counsel for appellant seems to admit that a plain verdict of guilty would have been sufficient, but claims that the verdict of “guilty of embezzlement as charged in the information” was a nullity. He also, in the same breath, claims that the jury should have specifically found -that the defendant was a public officer, etc. Sec. 10044, Bev. Codes
It is also claimed that the state voluntarily selected the draft of May 15th, 1909, for $25,215.26, as the subject of the embezzlement charged in the information, and that the state thus voluntarily elected to ask conviction upon this item alone. It is claimed that no attempt'was made to establish the embezzlement by showing that the books called for the production of $60,438.11 more than the cash on hand; that no demand was made upon the defendant for $60,438.11, or any other sum more than the payment of the certificates; and that the following objection should have been sustained: “Defendant objects to the introduction of any evidence tending to establish an embezzlement, or claimed to tend to establish an embezzlement, other than the $25,215.26 item that has been isolated and set apart by the testimony of the witnesses of the state at the present time, it now appearing that this remittance was made at one particular time and was separate and distinct from all other remittances, and that there was no additional remittance made by Mr. TIalvorson, the county treasurer, until at least thirty days thereafter, for his testimony shows that the remittances were made not more often than monthly, and until there is some showing to the court that there is an intent to aggregate several payments to the embezzlement of a gross’ sum, the state should be limited to the particular transaction which by its own volition it has selected as being the subject of the charge contained in the information; the defense insisting that by
The crime of embezzlement as known under the codes and in North Dakota is not the common-law offense of larceny. It is not necessary that the specific property appropriated should be identified, and that the prosecution should be based on the specific misappropriation of the aggregate sum charged. Sec. 9211 of the Revised Codes 1905, provides that “a distinct act of taking is not necessary to constitute embezzlement, but any fraudulent appropriation, conversion, or use of property, coming within the above prohibitions, is sufficient.” Sec. 9864 provides: “In an information or indictment for larceny or embezzlement of money, bank notes, certificates of stock, or valuable securities, or for a conspiracy to cheat and defraud a person of any such property, it is sufficient to allege the larceny or embezzlement, or the conspiracy to cheat and defraud, to be of money, bank notes, certificates of stock, or valuable securities, without specifying the coin, number, denomination, or kind, thereof.” Sec. 9204 defines the crime as being “the fraudulent appropriation of property by a person to whom it has been intrusted.” There can be no doubt that under the authorities and under the modern, statutes, the aggregate misappropriation may be treated as one crime and all the peculations as parts of the one offense, and that the aggregate shortage proven may be more or less than the sum stated in the information. It is not necessary even that the exact sum embezzled should be alleged, and it is not necessary to prove the exact sum charged. “In the case at bar,” says the supreme court of Massachusetts, in Com. v. Hussey, 111 Mass. 432, 434, “the evidence that proved the embezzlement proved that the amount and value of the notes embezzled was $10, and not $65. And it' is insisted on the part of the defendant that, as the indictment alleges an excuse for not giving a more specific description of the notes, the amount and value are made a part of the description of the offense and essential to its identity, in the same manner as an unnecessary averment as to the
We next come to the defense that the state depository banks were already filled to their limit with state funds at the time of the defendant’s taking office, and that something had to be done with the money in his possession. It- is claimed that even though the defendant may not have had the right to malee general deposits to these banks, he had
“Deposits made with bankers,” says the supreme court of Alabama, “are either general or special. In the case of a special deposit the bank merely assumes the charge or custody of property, without authority to use it, and the depositor is entitled to receive back the identical money or thing deposited. In such case the right of property re
There is much to be said in support of the proposition that the mere making of a general deposit in excess of the amount allowed by the statute in itself constituted an embezzlement. This, however, it is not necessary to decide. The trial judge did not instruct the jury that it ■did. He, it is true, charged the jury that no sum above the prescribed amount could be legally deposited, but at the same time he charged them that “the state treasurer has the right to deposit moneys in the bank designated by the state bo'ard of auditors as a depository, ■and it is not necessary that such deposit shall be upon open aecomit. It is sufficient if such deposit is subject to payment upon demand; and
These considerations practically dispose of all of the criticisms as to the instructions given and refused. We find that the jury was correctly and fully and fairly instructed as to the law of the case, and that the instructions refused were either fully covered, or were not in conformity to the law as applied to the facts in evidence. We find no prejudice to the defendant in the refusal of any of them, or in the rulings of the trial court generally.
The jury was, in our opinion, fully justified in finding that at any rate the amount of $54165 had been embezzled. The $5,000 certificate of deposit was cashed in order to raise the sum of $1,900 to effect the substitution of funds in connection with the fictitious deposit of $23,-215.26 in the Union National Bank of Grand Forks, which was, as we construe the evidence and as the jury had the right to believe, itself made to cover up a previous false entry in the account of the First National Bank of Fargo, which in turn had, as we believe, and as the jury also had the right to believe, also been made to conceal previous misappropriations. The $5,000 certificate even had, for some reason which was unexplained upon the trial, been taken, not in the
Friend Burgett:
Enclosed please find C. D. No. 505, for $5,000. Please place $1,900 of this to the credit of the state and send me draft for the balance, $3,100. Also please send me separate draft for $50, the amount of interest due on same.
The defendant himself testified that he did not know that it was ever credited to the state, and the witness Mrs. Mitchell testified that it was not. The jury found that it was not, and was embezzled, and we can hardly set aside their verdict; The mere fact that when the defendant gave up his office in January, 1912, and after the refusal of his successor to accept the Bowbells certificates of deposit, there was a surplus of $150 in the cash drawer, and which he afterwards withdrew without saying anything about the $54.65 item, cannot bo considered proof in any sense that he had not before embezzled it. The matter, at any rate, was one for the jury to pass upon.
There is no merit in the contention that the testimony as to the fact that the $54.65 item was not entered upon the books was elicited in rebuttal. The order of proof is largely within the control of the trial court, and his discretion must largely control. Bowman v. Eppinger, 1 N. D. 22, 44 N. W. 1000; State v. Ekanger, 8 N. D. 559, 80 N. W. 482; State v. Albertson, 20 N. D. 512, 516, 128 N. W. 1122; F. A. Patrick & Co. v. Austin, 20 N. D. 261, 127 N. W. 109; Pease v. Magill, 17 N. D. 166, 115 N. W. 260. The defendant had before admitted that he had received the amount, and it is to us quite conclusively shown that he received it in the course of a series of fraudulent transactions. The evidence was competent not merely to show the embezzlement of the particular item, but a general criminal intent throughout the entire transactions. On cross-examination he stated that he did not know whether it had been accounted for or not. At the end of the trial and on rebuttal the witness Mrs. Mitchell testi
Tbe case as a whole is simply this: Tbe defendant is charged with embezzling public moneys, bank drafts, notes, bills of exchange and valuable securities of tbe aggregate value and sum of $60,438.11.. There is no specification of the items in tbe information, though this, amount equals several specific items proved on tbe trial. Tbe authorities are unanimous that in an action for embezzlement tbe specific sum need not be alleged, and that a verdict may be sustained for an amount smaller or greater than that charged. Tbe embezzlement of tbe $60,— 438.11 is conclusively shown by tbe evidence; at least, there is evidence from which the jury might well find it. There is evidence-that during tbe transaction tbe defendant kept a draft for $54.65; in other words, embezzled not merely $60,438.11, but $60,492.76. It is, however, shown that- all of this money except tbe $54.65, and possibly tbe interest on some open account deposits, tbe amount of which is= not to be found in tbe evidence, was returned by tbe defendant after an accounting had been demanded of him. The later return, however,, did not in any way atone for tbe prior crime. Rev. Codes 1905, § 9215. Tbe statute in such cases allows not merely a verdict of guilty, but a verdict which shall specify tbe amount embezzled, and make tbe amount a lien upon tbe property of tbe defendant, so that it may be collected
The judgment of the District Court is affirmed.
Dissenting Opinion
dissenting. I am unable to concur in the conclusion arrived at in the majority opinion. While I do not disagree with much that is therein said by my brother Bruce, and am willing to concede that defendant, under the record facts, was guilty of the grossest irregularities, and perhaps embezzlements, in the exercise of the trust reposed in him by the people of this state, I am compelled to the view that the jury, by.its verdict, in legal effect acquitted him of the crime charged in the information, and attempted to find him guilty of another and distinct offense not charged therein.
In this dissenting opinion I deem it unnecessary to consider any other point in the case, and shall merely endeavor to briefly make clear my views upon the one point above mentioned.
The verdict finds the defendant guilty of embezzling the sum of $54.65. This is the exact amount of the interest draft, Ex Í05, sent to defendant at his request by the Elaxton bank, and it is entirely clear that this check constitutes the item for the embezzlement of which the jury found defendant guilty. The record unmistakably demonstrates this to be a fact. To justify the verdict, therefore, the court must be able to say that such item is embraced within the charge contained in the information, for, of course, it is elementary that a
A fair test as to whether the $54.65 item is included in the information is whether a conviction or acquittal Under such information could be successfully urged in bar of an attempted prosecution under another information specifically charging the embezzlement of such check. I think it could not.
Had the state seen fit to charge in general terms that defendant embezzled at a certain time or during a certain period, public funds entrusted to him as state treasurer, consisting of moneys, drafts, checks, etc., aggregating a certain sum or a sum in excess of a certain designated amount, by feloniously converting the same to his own use or to the use of another, I am willing to concede that the state would have a wider latitude in proving the charge, and perhaps it might, under such general allegation, properly have proved the embezzlement of the $54.65 interest item aforesaid. But where, as in this case, the state’s attorney has elected to specifically point out and identify the particular funds claimed to have been embezzled, by alleging the precise manner in which such acts of embezzlement were committed, as by .appropriating and converting the same to the use of the First State Bank of Bowbells, as charged in count two; or by loaning the same to said bank, as charged in count three, I think the state should be restricted in its proof to funds thus specifically designated, and which it has elected to single out in this manner. By such election it seems to me that the state has, in legal effect as it had the right to do, excluded other funds or embezzlements from the information. I do not believe that the authorities cited and relied upon in the majority opinion, when carefully examined, will be found to hold otherwise.
The case of Ker v. People, 110 Ill. 627, 51 Am. Bep. 706, 4 Am.
The foregoing views, inadequately expressed, afford sufficient reasons why I think the conviction should not be upheld, and I deem it unnecessary to express any opinion upon the other questions presented.
I am authorized to state that Mr. Chief Justice Spalding concurs in these views.
Rehearing
On Rehearing.
It has been urged for the first time on the petition for a rehearing that the statute (§ 9205, Rev. Codes 1905) under which the defendant was tried and convicted is unconstitutional. The act provides that upon conviction “such officer shall be punished by imprisonment in the penitentiary for a term of not less than one year nor more than twenty-one years, according to the magnitude of the embezzlement, and also to pay a fine equal to double the amount of money or other property so embezzled as aforesaid; which fine shall operate as a judgment at law on all the estate of the party so convicted and sentenced, and shall be enforced by execution or other process for the use of the state, county, precinct, district, town, city, or school district whose moneys or securities have been so embezzled.” It is contended that the provision “shall be enforced by execution or other process for the use of the state, county, precinct, district, town, city, or school district whose moneys or securities have been so embezzled” is in violation of § 154 of the Constitution of North Dakota, which provides that “the interest or income of this (land grant) fund, together with the net proceeds of all fines for violation of state laws, and all other sums which shall be provided by law, shall be faithfully used and applied each year for the use of the common schools of the state.”
If the point raised were one of ordinary practice, we would not now consider it, as it should have been raised both upon the trial in
It has been argued by the state that the money judgment provided for in § 9205 is in the nature of a reimbursement to the municipality which is defrauded, and that there is nothing in the Constitution which prohibits such recovery, even though in a criminal action. There is much support for this proposition to be found in the cases of Coffey v. Harlan County, 204 U. S. 659, 51 L. ed. 666, 27 Sup. Ct. Rep. 305, and Whitney v. State, 53 Neb. 287, 73 N. W. 696. In these cases (which construe statutes almost identical with the one under consideration before us) the courts hold that the fine is a part of the punishment, and that it is immaterial whether it is called a penalty or a civil judgment, or whether restitution of the money embezzled has been made, or not. There is too, in Nebraska, as here, a constitutional provision providing that fines shall be for the benefit of the school fund. See Constitution of Nebraska, article 8, § 5. “As a part of the consequences of a conviction of the crime of embezzlement of a public ofiicer,” says Mr. Justice Moody, in Coffey v. Harlan County, supra, “the law of Nebraska provides that a fine double the amount embezzled shall be inflicted, which shall operate as a judgment against the estate of the convict. It is not of the slightest importance whether this fine is called a penalty, a punishment, or a civil judgment. Whatever it is called, it comes to the convict as the result of his crime. The amount of the judgment is fixed by the amount of the embezzlement, and not by the amount remaining due on account of the embezzlement, and the only question left open to the accused is the fact and amount of the embezzlement. It is provided that the judgznent shall issue for double that amount, entirely irrespective of the question whether restitution has beezr made in whole or in part. . . . The law itself was justified by the plenary power of the state, and neither it nor its administration in this case discloses any violation of a right secured by the Constitution of the Hnited States.”
It is to be noticed, however, that neither on the appeal to .the Su
Although we are of tbe opinion that it is within tbe province of the legislature to impose a fine double tbe amount of tbe money embezzled, irrespective of whether it has been returned or not, we are nevertheless of the opinion that that part of tbe act under consideration is invalid which provides that tbe money collected shall be “for the use of tbe state, county, precinct, district, town, city or school district whose moneys or securities have been so embezzled. Waiving tbe question as to whether compensation for an injured individual or municipality can be recovered as a part of tbe judgment in a criminal action against tbe offender, we are quite sure that tbe recovery provided for under § 9205 is in tbe nature of a fine, and is not to be looked upon as compensation for the party injured. In tbe first place tbe word “fine” is used; in'tbe second place, tbe fine is double tbe amount of tbe embezzlement, and is irrespective of whether tbe money has been returned or not. In tbe third place tbe officer is under bonds, and the state, county, or municipality is abundantly protected. In the fourth place, any person aiding or abetting in tbe act might also be indicted and punished as a principal, and in such a contingency tbe state, county or municipality would recover not merely twice, but many times tbe amount of money embezzled, and this irrespective of whether it has been returned or not. It is clear to us, therefore, that tbe punishment of- tbe offender, and not tbe compensation of tbe injured state or mu
Being a fine, the clause which diverted the money from the school fund was invalid, for even if we concede with the state of Wisconsin (State v. De Lano, 80 Wis. 259, 49 N. W. 808; Contra; Ex parte McMahon, 26 Nev. 243, 66 Pac. 294; Atchison, T. & S. F. R. Co. v. State, 22 Kan. 17; School Directors v. Asheville, 137 N. C. 503, 50 S. E. 279) that the word “proceeds,” which is generally used in the acts which are construed, merely applies to the balance left after the cost of collection is paid, and that, under certain reward and qui tam statutes, compensation to the informer or prosecuting attorney may be looked upon as a cost of collection, the rule could hardly apply where the whole recovery goes to the injured state or municipality, and irrespective of the services rendered. Dutton v. Fowler, 27 Wis. 427; School Directors v. Asheville, 137 N. C. 503, 50 S. E. 279; State v. Parkins, 67 W. Va. 385, 61 S. E. 337; Lynch v. The Economy, 27 Wis. 69.
We have, therefore, a case in which a fine is rightfully imposed, but in which the legislature, after properly defining the crime and providing a punishment therefore, has, in a subsequent clause of the act, provided for a use of the money in a manner which is forbidden by § 154 of the Constitution. The question for consideration is whether such subsequent clause invalidates the whole act.
We think that the whole provision for the fine, providing, as it does, that the money shall be for the use of the state or municipality injured, instead of the general school fund, is invalid. There is, it is true, much to be said in favor of the proposition that that part only should be nullified which provides for the diversion from the school fund after the fine has been collected, and that not only the provision for the imprisonment, but the provision for the fine, should be allowed to stand, and that all the court is required to do is to strike out the clause which provides that said fine shall be “for the use of the state, county, precinct, district, town, city, or school district whose moneys or securities have been embezzled.” This, of course, would leave the fine to be collected and disbursed as the Constitution provides. See
Although we are prepared to say and to hold, however, that the legislature would have imposed a term of imprisonment at least for the period provided for in the act, irrespective of the provision for the fine, we are not prepared to say or to hold that the fine would have been as great if the legislature had realized that the proceeds must go to the general school fund, and not to the state or municipality injured. Having this doubt, we hardly can hold the provision for the fine to be valid. That the legislature, however, would have provided for a term of imprisonment .and for a term as long as that provided for, irrespective of the validity or invalidity of the provision for the fine, we have no doubt. Such being the case, and'the act, after the provision for the fine is eliminated, being complete and comprehensive in itself, we sustain the act as a whole, after eliminating therefrom the provision for the fine.
The District Court is directed to modify its judgment to the extent of striking therefrom the requirement for the payment of the fine. In all other respects the judgment of the District Court is affirmed and as so modified will be sustained.