61 N.W. 467 | N.D. | 1895
There must be a new trial in this case, upon the first ground urged by plaintiff in error. The prosecution was for embezzlement under § 6801, Comp. Laws, which reads as follows: “If any clerk or servant of any private person, co-partnership, or corporation, except apprentices and persons within the age of eighteen years, fraudulently applies to his own use or secretes with fraudulent intent to appropriate to his own use any property of any other person which has come into his control or care by virtue of his employment as such clerk or servant, he is guilty of embezzlement.” “Embezzlement” is defined by § 6796, Comp. Laws, to be “the fraudulent appropriation of property by a person to whom it has been intrusted.” Embezzlement is a statutory expansion of common law larceny, made to prevent a failure of justice that would occur under the technical rules that the law had applied to larceny. It covers cases where the property which is the subject of the offense comes into possession of the defendant without any technical trespass; in other words, where property is intrusted to the party. It will be noticed that under our'statute, quoted, it is immaterial whether the property be intrusted to the accused by the owner of the
It is elementary that in all prosecutions for larceny the property stolen must be specifically set forth, and also the ownership of such property; and, these allegations being necessary both in indictments for larceny and embezzlement, it follows as a matter of course, that proof of these allegations is also necessary. In the case at bar, defendant was accused of embezzling certain promissory notes. These notes, as alleged, and as the proof shows, were delivered to the plaintiff in error on the 23d day of November, 1893, by Robert A. Fox, the then alleged owner thereof. They were delivered to the plaintiff in error for the purpose of collection and remittance to said Fox. Five days thereafter, to-wit, on the 28th day of November, 1893, Robert A. Fox made a general assignment of all his property, including the notes intrusted to plaintiff in error, for the benefit of his creditoi's. This is developed by the evidence of the state. Such assignment, of course, canned with it, to the assignees, the legal title to the propex'ty in the notes. The crucial question in the case is whether or not the evidence shows an embezzlement or conversion of the property to his own use by plaintiff in error prior to such assignment. The infoi'mation under which plaintiff in error was convicted chax-ges him with embezzling the px'opexly of
There are many other errors alleged by counsel, referring to the rulings of the court in admitting and excluding evidence, and in giving the instructions to the jury. It is by no means certain
Reversed.