144 P. 1187 | Or. | 1914
delivered the opinion of the court.
The' defendants, W. H. Chapin and E. C. Herlow, were charged by the grand jury of Multnomah County, Oregon, by an indictment returned on the 28th day of February, 1914, with the crime of larceny by bailee
“If a defendant indicted for a crime, whose trial has not been postponed upon his application or by his consent, be not brought to trial at the next term of the court in which the indictment is triable, after it is found, the court must order the indictment to be dismissed, unless good cause to the contrary be shown.”
Section 1606 of the same laws provides that an appeal may be taken from an order refusing to dismiss an indictment as provided in the section quoted. According to the provisions of these sections of the code, if the cause was not continued upon proper application, or unless good cause therefor was shown, it was incumbent upon the defendant to make a request to the court for such dismissal and obtain ah order granting or refusing the same. No motion of that kind was made before the trial in this case, nor was any objection interposed to the trial of the cause on that ground. Under the circumstances the defendant waived the right, if any there was, to make such a motion: People v. Hawkins, 127 Cal. 372 (59 Pac. 697).
“The said W. H. Chapin and E. C. Herlow, on the 11th day of November, A. D. 1912, in the County of Multnomah and State of Oregon, then and there being then and there the bailee of $3.500, lawful money of the United States of America, a more particular description of which is to the grand jury unknown, all being the personal property of William Grace and Marion Anne Grace, did then and there unlawfully and feloniously fail, neglect and refuse to deliver, keep, and account for the said personal property according to the nature of their trust, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.”
It is urged on behalf of defendant Chapin that the indictment does not state facts sufficient to constitute a crime. The general rule is that when the statute sets out what shall constitute the offense, it is sufficient for the indictment to charge the offense substantially in the language of the statute. If the elements of the crime are set forth in the indictment sufficiently to inform the defendant of the charge he is called upon to answer, that is all that is required: State v. Ross, 55 Or. 450 (104 Pac. 596, 106 Pac. 1022, 42 L. R. A. (N. S.) 601, 613); State v. Dougherty, 4 Or. 200, 205. The indictment in" the case under consideration contains a plain, concise statement of acts and circumstances which identify the offense and show an infraction of the statute by the defendants. This section of the laws of the state declares that the acts described in the indictment constitute larceny.
“When a crime involves the commission of or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured or intended to be injured in not material.”
Under this section there can be no question but that the crime is described with sufficient certainty to identify the act charged to have been committed, and the conviction would he a complete bar to another prosecution for the offense. There was no fatal variance: State v. Fogarty, 105 Iowa, 32 (74 N. W. 754); State v. Congrove, 109 Iowa, 66 (80 N. W. 227); People v. Nunley, 142 Cal. 105, 75 Pac. 676). California has a statute the same as Section 1444, L. O. L. People v. Leong Quong, 60 Cal. 107, was a case involving the larceny of a horse alleged to belong to one Sang Hop. At the trial the- owner testified that Sang Hop was his business name and his personal name was Yup Chin. It was there said:
“The name of the owner of stolen property is not a' material part of the offense charged. It is only*353 required to identify the transaction, so that the defendant, by proper plea, may protect himself against another prosecution for the same offense. ”
In People v. Ribolsi, 89 Cal. 492 (26 Pac. 1082), the information charged that the stolen goods were the “personal property of the estate of George H. Tay and Oscar Backus, copartners, * * under the firm name and style of Geo. H. Tay & Co.” It appeared that one of the partners was dead, and that his estate was represented by executors who were the legal owners of the property, and a fatal variance was claimed by reason of these facts. It was held under Section 956 that the description left no doubt as to the identity of the act charged to have been committed, and was sufficient. It was said in State v. Nelson, 11 Nev. 339:
‘ ‘ The only thing essential in either case [larceny or robbery] seems to be an averment which shall show conclusively that the property does not belong to defendant. And courts have shown a disposition to allow the proof of any sort of interest in or right to the custody of the property to be sufficient proof of ownership. ’ ’
In the present case Mrs. Grace had ample authority at all times to receive the money from the defendants. She had the right to the custody thereof. If they had accounted to her according to the nature of their trust, it would have been a full compliance with the law. There was nothing in the allegation of ownership of the funds to mislead the defendants or render it doubtful as to what was the charge against them.
“When two or more persons are charged in the same indictment, and the court is of opinion that, in*355 regard to a particular defendant, there is not sufficient evidence to put him on his defense, it must if requested by another defendant then on trial, order him to be discharged from the indictment, before the evidence is closed, that he may be a witness for Ms codefendanf.”
It is sufficient to state that it does not appear from the record that there was not sufficient evidence against Herlow to put him on his defense, and there was no error in denying the motion or in not permitting defendant Herlow to testify. See State v. Goff, 71 Or. 352 (142 Pac. 564), where this is fully discussed by Mr. Justice Ramsey. See, also, State v. White, 48 Or. 416 (87 Pac. 137, 428); State v. Case, 61 Or. 265 (122 Pac. 304).
“A felonious intent is an essential ingredient of the crime charged against the defendant, and, before he can be convicted, it must distinctly appear that he made intentional wrong disposal of the funds of William Grace and Marion Anne Grace, with a felonious intent to cheat and defraud them. The mere fact that he was unable to pay the money over on demand to Mr. and Mrs. Grace is not enough, if criminal intent is not plainly apparent.”
For failure to give the instruction as requested defendant assigns error. The court did, however, instruct the jury as follows:
“A criminal intent in failing to deliver, or keep, or account for moneys intrusted to a bailee is an essential element of the crime charged in this indictment. * * You must be satisfied of such criminal intent beyond a reasonable doubt.”
Section 1956 of the statute does not expressly make an intent to defraud a necessary ingredient of the crime charged in the indictment. A wrongful conversion of money of another intrusted to a bailee or a failure, neglect or refusal to deliver, keep, or account for such money according to the nature of the trust
It was said by Mr. Justice Eakin, in State v. Ross, at page 473 of 55 Or., at page 604 of 104 Pac. (42 L. R. A. (N. S.) 601, 613):
“Neither is criminal intent involved under this statute, as we have shown in defining a conversion. Such a conversion, when committed in violation of the terms of this statute (Section 1807), constitutes the offense, and no other intent need be shown.”
“If you find that William Grace or Marion Anne Grace loaned this money to this defendant, or to this defendant and E. C. Herlow, or to the Chapin-Herlow Mortgage & Trust Company, then this defendant must be acquitted. For, if this transaction was a loan then there is no criminal liability. Or if you entertain a*358 reasonable doubt as to whether this transaction was a loan, then this defendant must be acquitted, upon the principle that the defendant is entitled to’ the benefit of every reasonable doubt. But if William Grace or Marion Anne Grace intrusted' this money to this defendant, or to this defendant and another, for the special purpose that the money be loaned upon first mortgage securities for the benefit of the owner, then there was imposed upon the persons to whom it was so intrusted the duty to loan such money upon first mortgage securities for the benefit of the owner, or, failing to so loan it, to return it to the owner; and if the person or persons to whom the money is so intrusted fails to use or apply such money according to the nature of their trust, and then fails to return it to the owner, but, on the contrary, either intentionally convert it to their own use, or else intentionally divert it to some other purpose in violation of the trust, then such person is guilty of larceny by bailee.”
“A few weeks before the bonds became due Mr. Chapin and Mr. Herlow came out to the house and were saying that if anyone had any money to invest, now was the time to invest it in first real estate mortgages of 7 and 8 per cent; that they had some if anyone had money to invest. And I said: ‘Well, our bonds become due soon; could you invest in first mortgages at 8 per cent for us?’ And they said: ‘Yes’; they could. And we were to let them know when the bank notified us that the bonds were due, and they would come out and take Mr. Grace to the bank and get the money.”
It seems that the Graces had some money invested in improvement bonds which were at the bank. Mrs. Grace further states: That in about three weeks after the first conversation related, she called up Chapin and Herlow over the phone and informed them that their bonds were due. That defendant Herlow came out to the house in a car to take Mr. Grace to the bank to get the money, and that she did not feel easy about Mr. Herlow getting it, and she phoned Mr. Chapin that
Mr. R. R. Duniway, an attorney, testified in effect that defendant Chapin admitted that this $3,500 had been received by them for the purpose of loaning- it on first real estate mortgages, and that he did not know why it had not been done. It appears that no part thereof was loaned upon mortgages. Defendant’s version of the first conversation is as follows:
“After we had finished' our conversation about the statement and the papers were all folded up and handed over to Mrs. Grace, we started to leave, and there was a sort of general conversation about one thing and another, and I think I made the remark that we were working into the mortgage business. . She says, ‘What can you get on mortgages?’ I says: ‘It depends upon where the property is located. Six or 7 or 8 per cent; 7 per cent in Laurelhurst, Irvington, and that district, and 8 per cent farther on out. ’ And she says, ‘We may have some money later on, and may want you to handle it for us, ’ something like that. I says, ‘All right; we will be very glad to do anything we can for you, Mrs. Grace.’ ”
It appears that there was no further understanding or agreement made concerning this money. Mrs. Grace asserts that it was an understood thing that it was to be loaned on first real estate mortgages. It also appears that an attempt was made on the behalf of the Graces to collect the money from the defendants, and that judgment was obtained upon the Mahon
“If any bailee, with or without hire, * * shall fail, neglect, or refuse to deliver, keep, or account for, according to the nature of his trust' any money or property of another delivered or entrusted to his care, control, or use, and which may be subject of larceny such bailee, upon conviction thereof, shall be deemed guilty of larceny and punished accordingly. ’ ’
It is contended upon behalf of defendant Chapin that the $3,500 was loaned to the Chapin-Herlow Mortgage & Trust Company, that Mrs. Grace accepted the note of the corporation for that amount, and that the testimony does not show that defendant is guilty. The evidence tends to show and the jury found that the note of the Mortgage & Trust Company delivered to the Graces was not a true memorandum or writing indicating the agreement or- understanding between the parties, but was a mere subterfuge or attempt on the part of the. defendants to pave the way for an excuse for converting the money to their own use, and not loaning the same as it was proposed, in entrusting the same to their care. The whole transaction of the defendant Chapin with the Graces was fully explained by the testimony. By the instructions the questions of fact were fairly submitted to the jury, and the defendant had a fair trial.
"We have examined other alleged errors, but find no reversible error in the record.
The judgment of the lower court must therefore be affirmed, and it is so ordered.
Affirmed. Rehearing Denied.