| Minn. | Jan 13, 1882
The defendant was indicted for embezzlement. The indictment alleges the election of the defendant to the office of county treasurer of Scott county, at the general election in November, 1877, his qualifying and entering upon the discharge of his duties on the first day of March following, and that he continued in such office until the 21st day of June, 1880. The indictment then proceeds as follows: “That on the twenty-second day of June, 1880, one Herman Baumhager was, by the board of county commissioners of said county of Scott, duly appointed to the office of county treasurer of said county, and on the twenty-fifth day of June, 1880, duly qualified and entered upon the discharge of his duties as such county treasurer, and thereby became the successor in office of said John J. Xling; and all the time since the qualification of said Herman Baumhager, on the said twenty-fifth day of June, 1880, he has been and now is such county treasurer of said county and acting in that capacity. ’’ In the subsequent part of the indictment the defendant is charged with embezzlement by refusing, upon demand made by Baumhager as his successor in office, to pay over to him public moneys received by the defendant as county treasurer, and still remaining in his hands.
The sufficiency of the indictment depends upon the fact as to whether it is sufficiently alleged that Baumhager was county treasurer, and the successor of the defendant in office. To refuse to deliver the money belonging in the county treasury to one not legally entitled to demand and to receive it, would not constitute the crime of embezzlement. The only ground upon wrhich a doubt can rest as to the sufficiency of the indictment in this respect is that it does not allege that there was a vacancy in the office; and, unless there was a vacancy, the commissioners had not authority to make an appointment. But the fact that the indictment does not allege a vacancy is not fatal, unless the instrument is to be construed as assuming to set forth the several steps or proceedings by which Baumhager became treasurer. It was not necessary to allege all such proceedings. The indictment is sufficient in that respect, if it alleges the fact that Baumhager was such officer, and the successor in office of the defendant, and if those allegations are not qualified by particular averment of the proceedings by which he became such. If, however, it appears
We think the indictment sufficient, and that it is not to be construed as purporting to set forth all of the steps by which Baumha-ger became county treasurer. It is apparent, from the simple allegation that Baumhager was duly appointed and qualified, that the pleader did not assume to set forth the facts which authorized such appointment, and the successive steps taken which constituted Baum-hager county treasurer. Hence, from the want of an express allegation of a vacancy in the office, the inference is not to be drawn that there was not such vacancy, and the general allegation of appointment and qualification of Baumhager, that he became the successor in office of the defendant, and that he has been, since the 25th day of June, 1880, such county treasurer, are unqualified, and have their full force as allegations of facts. If, as in the case of Pinney v. Fridley, (he ultimate fact pleaded had depended upon a succession of numerous events, all of which save one had been studiously averred, the omission of that one would have been fatal, for the reason above in. dicated — that the particular allegation of facts would modify and control the general conclusion.
In making up the jury for the trial of the case, one Bergerman was called as a juror, and challenged on the part of the state for actual bias. After examination upon voir dire, and particular interrogation by the court as to his knowledge of the English language, the court excluded the juror upen the ground of general disqualification. No challenge for that cause had been made. The defendant excepted. This was not error. The court was authorized to exclude the juror when it was made properly and sufficiently to appear that he had not such knowledge of the language as to enable him to understand the evidence, the argument of counsel, and the instructions of the court. It is the duty of the court to supervise, and within proper limits to control, the trial of causes before it, to the end that justice may be administered in reality as well as in form. The parties before the court might desire, from different motives, to.accept an incompetent
The indictment alleges that, as county treasurer, defendant, during his term of office, received money of the county to an amount “exceeding the sum of $38,000,” and on the 21st day of June, 1880, had in his possession of said moneys the sum of $38,000. Then follow allegations which are claimed to charge an embezzlement of the sum of $18,680.42 — part of the before-mentioned sum of $38,000. Upon the trial, the state offered evidence tending to show that the defendant received, during his term of office and prior to June 21, 1880, the sum of $49,140. The defendant objected to such evidence, claiming that the state was concluded by the allegations of the indictment from showing a larger sum received than $38,000. The evidence was properly received. The proof was within the allegations of the indictment, which charged a receipt of a sum exceeding $38,000 during defendant’s term of office. It was not necessary that the allegations of the indictment be more specific in respect to the gross sum received by the defendant, or that the whole amount of such receipts be stated at all.
To prove the receipt and possession of public moneys by the defendant, the state offered in evidence the official semi-annual statement for March 1, 1880, signed by the defendant as county treasurer and by the county auditor. The making of the semi-annual settlement and the execution of the official statement were shown. This statement was headed as follows: “We, the undersigned, hereby certify that the following are the true and correct amounts of money in the county treasury, March 1, 1880, belonging to each fund as within stated.” The sums set down in figures opposite the names of the several funds have no dollar-marks affixed or other index of the amounts of money represented than this: the figures are in column form, the
The evidence showed that, by resolution of the board of county commissioners, Baumhager was appointed county treasurer with the following proviso: “Provided, however, this appointment is made upon the express condition that the said Baumhager shall give the required bond, and duly qualify as such treasurer, as provided by law, within two days from and after the day of appointment.” The bond of Baumhager was not presented to the board for acceptance until three days afterwards, but it was then accepted and approved upon motion in form as follows: “On motion of-the bond of Herman Baumhager, county treasurer, appointed as per resolution of this board, was accepted and approved.” The appointment was sufficiently shown. It was within the power of the board of commissioners to modify the resolution of appointment bjr afterwards dispensing with the express condition annexed to it, and the official approval and acceptance of the bond in the terms above given must be regarded as a subsequent modification of the resolution by dispensing with the proviso.
It appears from the ease, that the amount which the evidence charges defendant with having received was not all money, but consisted in part of county orders, and, as is claimed, of a considerable amount of town orders. It does not, however, distinctly appear from the record before us that such town orders were received; but the argument proceeded upon that assumption, and we will consider the fact to be so. It is claimed that there can be no conviction of embezzlement of money in such case, without proof on the part of the
It appeal's that there came into the hands of Baumhager, upon his succeeding defendant, some stubs of tax receipts made out by defendant, which Baumhager turned over to the county auditor, and the latter charged the amounts of the same to defendant. It also appears that some of the receipts represented by these stubs were found in the possession of defendant when his successor came into office. It does not otherwise appear whether such receipts had'ever been delivered by the treasurer to tax-payers. The stub duplicates of tax receipts
It is claimed that the conviction is erroneous because there was no evidence that Baumhager was eligible to the office to which he was appointed. From an appointment to a public office regular in form, by a body or officer in whom rests the appointing power, the eligibility of the appointee is presumed. It is not necessary, unless it be so in a case directly involving the issue of his eligibility, to prove that he was a citizen of the United States, or had declared his intention to become such, that he was 21 years of age, and had resided in the state four months prior to such appointment.
The demand made by Baumhager, the refusal to comply with which constitutes the alleged embezzlement, was a demand that the defendant forthwith deliver to him, (Baumhager,) as the defendant’s successor in office, “all the public money, books, accounts, papers and documents” in the possession of defendant belonging to the office of county treasurer of said county, without other specification of any particular sum demanded. Gen. St. 1878, c. 8, § 173, provides that “each county treasurer, on going out of office, shall deliver to his successor in office all the public money, books, accounts, papers and documents in his possession.” Section 36 of chapter 95 provides, in substance, that if any such officer improperly neglects or refuses to pay over public moneys according to the provisions Of law, he is guilty of embezzlement. By the last section referred to, the improper neglect or refusal to pay over according to the provisions' of law is made per se embezzlement. State v. Munch, 22 Minn. 67. The former section contains the provisions of law applicable to this case. The effect of both sections is to make the improper neglect or refusal of a county treasurer, on going out of office, to deliver to his successor in office all the publie money in his hands, embezzlement. Hence,
We have considered the point that the evidence does not sustain the verdict in respect to the amount found to have been embezzled, but find no sufficient reason to disturb the verdict. It is clearly within the amount which the evidence fairly tends to show to be chargeable against the defendant.
Judgment affirmed.