161 P. 578 | Idaho | 1916
This case is appealed from the district court of the fourth judicial district, for Lincoln county. The defendant was jointly charged with L. A. Duvall, W. F. Horne and H. R. Plughoff, with the crime of presenting for payment to the treasurer of Blaine county certain false and fraudulent claims. The information' alleges that for some time prior to December 18, 1914, certain bonds and coupons were in the possession, for safekeeping, of the Hailey National Bank of Hailey, Idaho, and were taken from the custody of said bank by the defendants on or about December 18, 1914; that the bonds had never been issued by the said county of Blaine to any person or persons, and that the defendants had no interest or claim in said bonds; that the defendants, with intent to defraud the county of Blaine, on or about December 18, 1914, at the said county of Blaine, in the state of Idaho, presented these bonds for payment to the then treasurer of said Blaine county. In several places the information also refers to said bonds as false and fraudulent. The defendant Curtis demanded and was granted a change of venue to Lincoln county, and a separate trial. Upon his trial the jury found him guilty. Upon this verdict the court rendered judgment that the defendant is guilty of presenting false and fraudulent claims to the treasurer of Blaine county, Idaho, and that he be punished therefor by imprisonment in the state prison of the state of Idaho for not less than 18 months nor more than 5 years. From this judgment the defendant appeals to this court upon all questions of law and fact. The defendant specifies certain errors of law which he claims occurred upon the trial, and also contends that the evidence is insufficient to support the verdict of the jury.
The first point relied upon by appellant is that the trial court erred in permitting the clerk to read the last clause in the information, which stated that the codefendant, Horne, was a fugitive from justice. The statement in the informa
The second point is that the court erred in admitting evidence of acts of the defendant Horne prior to proof of a conspiracy. If from all the evidence in the case the jury were justified in concluding, as it did, that the defendant Curtis was a confederate of the defendant Horne, then the acts of Horne, committed in pursuance of the criminal design, would be binding on the defendant Curtis. The question of the order in which the proof was admitted would not then be controlling. The question for this court to decide is now one of the sufficiency of the proof rather than of the order of the proof. If the court finds that the whole- of the evidence is sufficient to connect Curtis with Horne, then the act of Horne in cashing the bonds is binding on Curtis, whether the court erred in passing on the order of proof or not.
The nest point is a claim of variance between the information and the proof. The information is drawn under Rev. Codes, sec. 6385:
“Every person who, with intent to defraud, presents for allowance or for payment to any state board or officer, or to any county, town, city, ward, or village board or officer, authorized to allow or pay the same if genuine, any false or fraudulent claim, bill, account, voucher, or writing, is guilty of a felony.”
It is claimed that the information charges the defendant with presenting for payment certain false writings, to. wit,
The next point is that the evidence is insufficient to warrant a conviction. It is first contended that the evidence is not sufficient to prove that Blaine county was the owner of the bonds in question. The material allegation of the information in this regard is that the bonds were ready to be issued and delivered, but had never been issued or delivered by said Blaine county to any person or persons, and that the defendants then and there had no interest or claim whatever therein. We think the evidence in the record is sufficient to prove this allegation, as the jury found.
The next contention is that the evidence is insufficient to connect the defendant Curtis with the alleged offense. The defendant is connected with the transaction, first, by his delivery of the bonds to Horne, and, secondly,„ by the delivery of $1,000 to him by Horne, and his receipt of the same. The delivery of the bonds to Horne was a necessary step in the commission of the offense. In determining the question of whether that delivery was an innocent act or was committed with a guilty intent, the fact that Horne later handed the defendant Curtis $1,000, and that Curtis received the same, for which there was no reason except the delivery of the bonds, is of great significance. From it a reasonable inference may be drawn that there had been an understanding between Curtis and Horne. If not, Home’s act was a very rash one. If he attempted to bribe an innocent man, he would be subjecting himself to the danger of instant exposure. Unexplained, or in the absence of a reasonable explanation, these facts would certainly justify a conviction. The defendant attempted to explain his possession of the $1,000 by stating that although he at once connected it with the bond transaction, he did not mean to keep it, but wanted to
“Q. Now, when that cheek came into your bank for payment and the payment was stopped, you knew at that time that the check was in payment of part of the coupons which had been delivered by you to Mr. Horne 1” (This question referred to the check, state’s exhibit “A-2.”)
The defendant answered, “Mr. Ensign told me that later on, about the check, and I suspicioned that.” He does not say just when it was that his suspicions were aroused, but the jury would be justified in believing that it was before January 30th or January 31st, the dates when he made a partial disclosure to Mr. Ensign and a disclosure to the
In State v. Seymour, 7 Ida. 257, 61 Pac. 1033, this court held that where a reasonable explanation of possession of stolen property is given and there is no conflict of evidence in regard thereto, and the witness is not impeached, the jury should have acquitted. In that case the defendant’s statement that he bought the horse was corroborated by another apparently disinterested witness. In this ease the defendant is corroborated by witnesses Sullivan and Baker only to the extent of proving that he wanted to see his lawyer after receiving the money. This fact does not of itself prove either guilt or innocence. It is a question of reasonable inference. The jury evidently found that a reasonable inference of
The last point is in regard to the instructions. The defendant complains that certain requested instructions should have been given. In each case we find that the request was amply and fairly covered by some other instructions given by the court. Counsel often request several instructions of the same purport, with slightly different shades of meaning, for the sake of argumentative effect. It would be undue emphasis for the court to give several instructions to the same effect on the same point. It is sufficient if the point is clearly and fairly explained in a single instruction where that is possible. It is contended that instruction No. 7, given by the court, is erroneous in that it does not contain an explanation of the element of intent to defraud. However, the rule is elementary that the instructions given must be read and construed as a whole, and that no one instruction shall be singled out as stating all the law of the case. In instruction No. 8 we find that the court said that the state must prove an intent to defraud on the part of the defendant, and the same matter is specifically treated in other instructions. We do not assume that the jury regarded simply instruction No. 7, but that it read, considered and applied all the instructions, as it was its duty to do.
Petition for rehearing denied.