294 N.W. 208 | Minn. | 1940
More difficult is the problem raised concerning the admission of evidence of defendant's proposed plea of guilty. As to the question of whether or not a plea of guilty, which is withdrawn by leave of the court, is admissible upon the *351
trial of a substituted plea of not guilty, there is a division of authority. One line of cases holds the former plea of guilty admissible on the theory that such a plea should be treated as a confession, and, although withdrawn and the plea of not guilty substituted, it has the same logical probative force as any other confession, subject to all the safeguards surrounding confessions. People v. Steinmetz,
In the case of State v. Mamer,
Since there will have to be a new trial, we should consider appellant's contention that the evidence produced by the state fails to prove and establish the commission of the crime of embezzlement by the defendant for the reason that if any money was embezzled it was not Kirtland's money, as charged in the information. The facts in this connection are that one Julius Eggum, who started a coal business in Fergus Falls under the trade name of Consumers Fuel Company, in June, 1937, and by whom the defendant was employed since the beginning of the business, became badly in debt in the spring of 1938, and that on June 4 of that year, as the result of the acceptance by him of a proposal by one of his three principal creditors, the Carnegie Dock Fuel Company, Eggum entered into a written agreement by which he appointed C.A. Kirtland as trustee and as his "irrevocable agent" during the period of the agreement to take complete charge of the following portions of his business: The keeping of his books and records; the handling of his accounts receivable and all other assets of his business, whether representing *353 past, present, or future transactions; the disbursing of all funds pertaining to his business; the making of all purchases for his business; and the making of any and all contracts that might expose the business to a liability or call for the expenditure of funds. The instrument also provided that Kirtland might delegate certain of these functions to Eggum, but in each case such delegation would be on the understanding that Eggum, in the performance of it, was acting for the agent for the purposes of the agreement and not in his own behalf, and that Eggum would be accountable to the "agent" for all actions that he might take under any instructions given by the "agent" to him. By accepting this proposal Eggum agreed not to make any purchases for the business, withdraw any funds or properties from the business, or incur any indebtedness on account of the business except as approved and authorized by the "agent" (Mr. Kirtland), and that he would turn over to the "agent," pursuant to the agreement, any and all receipts of the business that came into his hands. Taking this agreement by its four corners and in view of what Kirtland was authorized to do and what Eggum was prohibited from doing, it appears clearly that Kirtland, although designated in part as "agent," was in fact trustee of Eggum's business, and as such had title to the money which is charged to have been embezzled.
We have considered the evidence and are satisfied that it is sufficient as to certain of the items charged to sustain a conviction of petit larceny.
For the reasons stated above, order reversed and new trial granted. *354