| Minn. | Jul 31, 1893
The defendant was indicted for the offense of grand larceny in the first degree. It is objected that the indictment fails to state facts sufficient to constitute an offense, and also that it charges two separate offenses in one count. Though not a model in form, we are of the opinion that the objections were properly overruled. The facts stated bring the case within the provisions of the Penal Code, § 415, subd. 2. The defendant is shown to have been lawfully in the possession of the property as bailee under a contract for shipment and storage. It was not a case of larceny at the common law, and the fact that several terms or formal words are injected into the indictment which are used in indictments for larceny at the common law, and which may be rejected as surplusage, does not change the nature of the case as it essentially appears upon the facts stated, or bring it within the provisions, of subdivision 1 of that section. The relations which defendant sustained to White were in their nature fiduciary, and necessarily bring the case within subdivision 2, in connection with the appropriate allegations of the wrongful conversion of the’property. State v. Friend, 47 Minn. 450, (50 N.W. 692" court="Minn." date_filed="1891-12-07" href="https://app.midpage.ai/document/state-v-friend-7967210?utm_source=webapp" opinion_id="7967210">50 N. W. Rep. 692.) It was not necessary
The only other assignment of error deemed important or necessary to consider is the effect of the omission of certain words in the copy of the indictment delivered to the defendant when he was arraigned, the objection being that the copy served was not a true copy of the original. After the case was called, and the jury were sworn, the defendant moved to -dismiss the action, and discharge the defendant on this ground. The defendant had, before the jury were sworn, moved to dismiss on the ground, of the insufficiency of the indictment; and it was not made to appear in his affidavit on which he based his motion at what time he first learned of the omission complained of. If the motion had been made sooner, the error might have been corrected by a new arraignment. As it is, the objection was too late, and the motion was properly denied. And besides, the defendant was not prejudiced in the least, because the words omitted were entirely immaterial and unnecessary in this indictment. The omission was of the words “and defraud” after the word “deprive.” The statute (section 415) reads: “A person who with the intent to deprive or defraud the true owner,” etc. It is manifest that the omitted words were not essential in this indictment, which alleges a willful and felonious misappropriation and conversion of the property. The court ruled correctly m all the points submitted, and the case will be remanded for further proceedings in the District Court.