State v. Goode, 68 Iowa 593

State v. Goode

68 Iowa 593 | Iowa | 1886

Adams, Ch. J.

1. instkucversa! for IT-prejudice!”* I. The defendant complains of the giving of an instruction in these words: “If you find from the evidence that the defendant * * * was in the employ of the Wabash, St. Louis & Pacific Railroad Company, as its agent or servant, and that by virtue of said employment he received money belonging to said railroad company, as charged in the indictment, and that he embezzled and fraudulently converted the same to his own use, or that he took and secreted-said money with the intent to convert the same to his own use, without the consent of said railroad company, then you will find the defendant guilty.” One objection urged to the instruction is that it allowed the jury to find the defendant guilty if the evidence showed that he secreted the company’s money with intent to convert the same, when the larceny with which he was charged in the indictment was not based *595upon such fact, but upon the fact of actual*conversion;" -'The indictment was drawn under section 3909 ' of :-thé "Oodé'.' Under that section the defendant was guilty of larceny •' if he embezzled his employer’s money, coming into his hands by virtue of his employment, by actual conversion, "'or by Secreting the same with intent to convert. Whether, as the indictment did not charge' larceny by secreting with intent to convert, it was proper to show that the larceny • was1 committed in that way, and to ask a conviction foi* lairceriy * so committed,' we need not determine. The ■undisputed- eWh* dence shows that the defendant -was gui-lty of laréefiy-’ % actual conversion. Under the evidence, then,-' the'- vetdiet could not properly have been different, even if the iPstruction given had not embraced the part objected to. Wé'ate not able to see, then, that the defendant was prejudiced.' '' •

2. embezzle'Sefowipurea •party. !- Another objection urged is that the railroad company Was not named in its articles of incorporation, the “Wabash,’ St-.^ouis & Pacific Railroad Company,”' as the instruction assumed, but the “-Wabash, St'Louis- & Pacific Railway Company.” ' It appears, from-the evidence that the company was named -in the articles • as the defendant claims. It must be' conceded, thérefore;---t->hat it was wrongly named in the instruction. We may sa!y, also,' that it was wrongly named in the indictment. But á fail1-’ road is a railway, and conversely; and while theré'was.'a slight error in respect to the corporate name, we canpot regard it as possible that either the defendant or-jury-; Was misled., Nor can we hold that there is any danger*.pf-another conviction for embezzling the same -moheyk’-lTt appears to us, therefore, that the defendant was 'not prejudiced. '- > *.! ;*

3: practice in supreme court,: review-mg mstruetions. • II. To constitute the crime contemplated by the - statute, it must appear that the money came into the defendant’s hands by virtue of his employment. It is said , . .., _ . that the rury was nowhere so instructed.' -'"To-J J this we may say that it does not appear thatwo *596have all the instructions before us. Besides, the undisputed evidence shows that the defendant had authority to receive the company’s money as their station agent, and did so receive it. It is true, the defendant’s counsel denies that there was any evidence; but it is sufficient to refer to the testimony of Hitchcock and the defendant himself, and to say that we do not find any evidence in conflict with their testimony.

III. It is said that the defendant could not properly be convicted without evidence that the money was demanded of the defendant, and that there was no evidence of demand. Whether a demand was necessary we need not determine. Hitchcock, the traveling auditor of the company, employed to investigate station agents’ accounts, investigated the defendant’s accounts, and found him short, and demanded of him that he should make good the shortage, as appears from his testimony.

4. BMBEZfcMEagpnt'of'corof defendant, IV. The indictment charged that the defendant was over sixteen years of age. The court instructed the jury that it was not necessary for-the state to show that he was over that age. The defendant complains of this instruction. But, m our opinion, it is cor-' rect. Under the statute, the crime in question may be committed by the agent of a corporation, though under that age.' It was charged that the defendant was the agent of a corporation, and it was so shown. The averment that he was over sixteen years of age was entirely superfluous. It is not a case of an averment made with unnecessary particularity. If it were, it might be different.

_ .......... 5. EVIDENCE: prejudice. V; The defendant complains of the admission of certain copies of letters. Whether the originals would have been admissible, and, if so, whether the copies were 7 7 7 i we do not determine. If they had been excluded, the verdict could not properly have been different; and the defendant was not prejudiced. We have examined the entire record, and find no prejudicial error. Affirmed.