150 N.W. 929 | N.D. | 1915
Defendant, convicted of embezzlement, appeals. The first error assigned is based on objection to all testimony on the ground that the information is insufficient to charge embezzlement. The information was not assailed by demurrer. It will be assumed that the question of sufficiency of the information to charge embezzlement is raised under § 10,745, Comp. Laws 1913. The information recites that defendant “did commit the crime of embezzlement, committed as follows, to wit: that at said time and place the said J. C. Hoff then and there having in his possession and under his control property of Carl Anderson, to wit: $120 intrusted to said J. C. Hoff by said Carl Anderson for safekeeping, for the use and benefit of said Carl Anderson, did wilfully, fraudulently, and feloniously appropriate the same to his own use, a purpose not in the due and lawful execution of his trust, without the consent of said Carl Anderson.” The information is drawn to charge embezzlement by a fraudulent conversion by a bailee, under § 9934, Comp. Laws 1913. That statute, omitting unnecessary words, reads: “If any person being intrusted with any property as bailee. . . . fraudulently converts the same or the proceeds thereof to his own use, or secretes it or them with a fraudulent intent to convert to his own use, he is guilty of embezzlement.” Appellant asserts that the information is insufficient “for the reason that the charging part is in the form of a recital.” This arises from the use of the word “having,” the participle. No citation of authority is needed, as no modern authority supports the objection taken. Bishop’s New Criminal Procedure, vol. 2, §§ 504, 556-588, that “the participle or even the adverb will suffice when so employed to satisfy the demand for directness,” and “the law which is even indifferent to false grammar and verbal in
Counsel then avers that the information is drawn under both §§ 9933 and 9934, relating to different appropriations by persons in different fiduciary capacities, and therefore, that the information is duplicitous. This ground cannot be urged on an objection taken to evidence. It can only be taken by demurrer. No demurrer having been interposed, the defect is waived. State v. Climie, 12 N. D. 33, 94 N. W. 574, 13 Am. Crim. Rep. 211. But the information was not drawn under or to cover any embezzlement except the one charged under § 9934, heretofore quoted.
The next assignment is that “no demand for the return of the property alleged to have been embezzled is set forth.” Drawn under this section the information did not need any allegation as to demand, as the statute does not make demand an element of the offense. 15 Cyc. 522 and authorities under note 27 and 7 Enc. Pl. & Pr. 440. “It is necessary to allege a demand made upon the defendant to pay the money or return the property, and his refusal to do so, only when the statute makes such demand and refusal elements of the crime.” See also Keys v. State, 81 Am. St. Rep. 63, and note (112 Ga. 392, 37 S. E. 762), and State v. Blackley, 138 N. C. 620, 50 S. E. 310, that “where a statute defining embezzlement does not make a demand necessary to support a conviction, proof of a demand is unnecessary.” Arizona v. Monroe, 10 Ariz. 53, 85 Pac. 651.
Defendant then alleges that “there is no allegation set forth of conversion by the defendant.” This is predicated upon the use of the words “fraudulently appropriate” in the information, instead of the-statutory terms “fraudulently convert” in the averment that said defendant “did wilfully, fraudulently, and feloniously appropriate the same to his own use . . . without the consent of said Carl Anderson.” The objection is unsound. Section 9929 defines embezzlement to be “the fraudulent appropriation of property by a person to whom it has been intrusted,” and § 9934 declares that under the circumstances there stated whoever “fraudulently converts the same ... to his own use is guilty of embezzlement,” the very definition of which is the fraudulent appropriation of property by a person to whom it has been intrusted. In other words, the term “convert” means no more than
It is urged that tbe information does not sufficiently charge tbe existence of a fiduciary relationship between defendant and Anderson, or define tbe same, or allege that the money was held by defendant in a fiduciary capacity and appropriated to a purpose not in tbe lawful execution of tbe trust under which it was held. Tbe information charges tbe money to have been in tbe possession and under tbe control of defendant, and to have been tbe property of Anderson, intrusted to tbe defendant by him for safe-keeping, for tbe use and benefit of Anderson, and Anderson’s money, so held by defendant for such purposes, was by defendant fraudulently appropriated to bis own use, — ■ a purpose not in tbe due and lawful execution of bis trust, and.tbis without Anderson’s consent. The words “for safe-keeping” define tbe character for tbe bolding by defendant of Anderson’s money so intrusted and in Hoff’s possession and control, and that tbe same is alleged to be for the benefit of Anderson. The facts stated make tbe defendant a bailee of tbe money under tbe only conclusion of law to be
Error is assigned on a remark of the state’s attorney, made during defendants’ cross-examination. No exceptions was taken thereto, either at the time or later, during the progress of the trial, and there is therefore nothing upon which to predicate error.
. Several exceptions are taken to the written charge given, all of whicfy have been carefully examined. Only one is apparently meritorious. But taking the instruction as a whole, and in the light of the proof, no prejudice could have resulted from such error. In its general instructions the court said: “To constitute the crime of embezzlement the intent of the defendant is a material allegation to be proved by the state.” A correct instruction, but which was followed by the erroneous one that “the rule of law in regard to intent is that intent to defraud is to be inferred from wilfully and knowingly doing that which is illegal and which in its necessary consequences and results must injure another. The intent may be presumed from the doing of a wrongful and fraudulent or illegal act.” While this is an instruction in the abstract, it is not a correct one. The statement that “intent to defraud is to be inferred” may be easily misunderstood. What was meant was that intent to defraud may be inferred. Then again, intent to defraud is not necessarily an inference to be drawn from “knowingly doing that which is illegal, and which in its consequences and results must in jure another.” People v. Jackson, 138 Cal. 462, 71 Pac. 556, 557. This instruction, also given in a prosecution for embezzlement, is there criticized as follows: “We think appellant’s objection to that part of the instruction which reads as follows, ‘A fraudulent and felonious intent is presumed from 'the deliberate commission of an unlawful act for the purpose of injurying another’ is not altogether without foundation. It does not necessarily follow that a party intends fraud because he deliberately commits an unlawful act for the purpose of injuring another. The ‘unlawful act’ may be an act of personal violence, intended simply to injure the person, or it may be intended only to injure the character, and in no way directed at the property or property rights of the person. In any of these instances it would be very difficult to deduce a fraudulent purpose from the act.” But the court concludes with the following, applicable to the instant case, under the evidence:
All the testimony has been carefully read and overwhelmingly supports the verdict. The judgment and order appealed from is affirmed.