79 Minn. 373 | Minn. | 1900
Defendant was indicted under the provisions of G. S. 1894, § 6723, for appropriating to his own use money coming into his possession as the assignee of Andrew G. Peterson, who had made an assignment for the benefit of his creditors under the statute. The deed of assignment was set out in full in the indictment, and immediately following it was a purported acceptance by defendant. Although it was not alleged directly that the defendant accepted and qualified under the deed of assignment, the indictment charged that he was duly appointed and employed as a trustee, and was then and there acting as such; and that by virtue of his appointment and employment he then and there had in his possession the sum of money specified as having been appropriated and embezzled by him. The indictment further charged that the money so appropriated was the property of said assignor, Andrew G. Peterson, and that the latter wras the owner thereof. The court below overruled a general demurrer to this indictment, and thereupon certified to this court three questions for its determination.
The second question, briefly stated, is this: Does it appear that the defendant has committed the offense charged, upon the facts stated in the indictment, it being positively alleged that Andrew G. Peterson was the owner of the money, while upon its face the
It has been universally held that the same rules with reference to the property embezzled, and the ownership thereof, and the fraudulent intent to convert the property apply in cases of embezzlement as apply in cases of larceny. Unless the pleader is released from this exactness by special statute, the goods and ownership must be set out in the indictment and proved with the same exact completeness as in larceny. 1 Wharton, Crim. L. § 1044; 1 McClain, Crim. L. § 653. See also State v. Collins, 4 N. D. 433, 61 N. W. 467; State v. Lyon, 45 N. J. L. 272; Livingston v. State, 16 Tex. App. 652. We have no statute which changes this rule.
It is obvious from the indictment that Andrew G. Peterson was not the owner of the money alleged to have been embezzled. It is true, his interest in his estate was not extinguished by the assignment, but that is of no consequence with the indictment in the present form. As the assignee of Peterson, the defendant was the trustee of an express trust. As such trustee, he held the legal title to the money which came into his hands, and he also held the equitable interest of the assignor in respect thereto. Langdon v. Thompson, 25 Minn. 509; Donohue v. Ladd, 31 Minn. 244, 17 N. W. 381; Williamson v. Selden, 53 Minn. 73, 54 N. W. 1055. He was the only party who could have maintained a civil action concerning, or to recover, this money. Peterson simply had a reversionary interest in all of the property assigned, and he was entitled to have the proceeds applied, as far as possible, in the discharging of his debts. Although his interest was not altogether extinguished, it is very clear that his ownership could not have been established at the trial in the absence of an allegation to the effect that the estate .had been fully administered, and a surplus remained, which, in fact, was his. Although not directly in point, see State v. Farrington, 59 Minn. 147, 60 N. W. 1088. The court below erred when it overruled the demurrer.
Ordér reversed, case remanded.
