200 P. 525 | Nev. | 1921
Lead Opinion
By the Court,
The defendant was indicted upon a charge of embezzlement, and, having been convicted at the trial, appeals from the order denying his motion for a new trial, and from the judgment.
The charging part of the indictment is in the following language:
“That said defendant, on the 28th day of May, A. D. 1920, or thereabouts, and before the finding of this indictment, at and within the county of Washoe, State of Nevada, committed thé crime of embezzlement. That at the time and place aforesaid the above-named defendant was secretary and treasurer of Greek Hills Trimetal Company, Inc., a corporation then and there organized and existing under and by virtue of the laws of the State of Nevada, and by reason of. his being secretary and treasurer of said Greek Hills Trimetal Company, Inc., was then and there intrusted with and had given unto his possession by said Greek Hills Trimetal Company, Inc., the owner thereof, four hundred ($400) dollars, lawful money of the United States of America, for the sole and only purpose of holding and keeping the said four hundred ($400) dollars in his possession, as said secretary and treasurer of said Greek Hills Trimetal Company, Inc., and expending the same, as said Secretary and treasurer of said Greek Hills Trimetal Company, Inc., in payment of claims against the said Greek Hills Trimetal Company, Inc., when duly*221 and regularly authorized and allowed by said Greek Hills Trimetal Company, Inc., and that said defendant did then and there, while intrusted by said Greek Hills Trimetal Company, Inc., as secretary and treasurer of said Greek Hills Trimetal Company, Inc., with the said four hundred ($400) dollars as aforesaid, and while in the possession thereof as aforesaid, for the uses and purposes aforesaid, wilfully, unlawfully, fraudulently, and feloniously convert the said four hundred ($400) dollars, lawful money of the United States of America, to his own use, with the intent then and there to steal the same and to defraud the said Greek Hills Trimetal Company, Inc., the owner thereof, of the same.”
It is admitted that the defendant was the treasurer of the company mentioned on May 28, 1920, and that on that day he had in his possession a blank check of said company, duly signed by the president, with instructions to ascertain the amount of a certain indebtedness of the company, which was $12, to fill in the amount of .said indebtedness as the sum for which said check should be made payable, to sign the same as treasurer, and then to pay said indebtedness, but that instead of doing as instructed he made the check payable to himself for. $400, got the money thereon, and paid two claims against the company, aggregating $64. Further details will appear in the opinion.
“The reasons on which the sanction of secrecy which the common law gives to proceedings before grand juries is founded are said in the books to be threefold. One is that the utmost freedom of disclosure of alleged crimes and offenses by prosecutors may be secured. A second is that perjury and subornation of perjury may be prevented by withholding the knowledge of facts testified to before the grand jury, which, if known, it would be for the interest of the accused or their confederates to attempt to disprove by procuring false testimony. The third is to conceal the fact that an indictment is found against a party, in order to avoid the danger that he may escape and elude arrest upon it, before the presentment is made. * * * But when these purposes .are accomplished, the necessity and expediency of retaining the seal of secrecy are at an end. ‘Cessante ratione, cessat regula.’ ”
Dwelling upon the same question, it is said by the
“If the witnesses violated the obligation of secrecy-imposed by thenl by the two hundred and seventeenth section, the defendant could not take advantage of it. The obligation is due and owing to the public, and not to the witness, and therefore its violation cannot be an occasion of offense to him.”
We fully approve of the views expressed in the opinions mentioned.
“In many jurisdictions, statutes have been enacted which provide that when certain facts have been proved they shall be prima-facie evidence of the existence of the main fact in question. The validity of such acts has been questioned many times, but usually they have been held to be a proper exercise of legislative power. * * * The inference of the existence of the main fact because of the existence of the fact actually proved, must not be merely and purely arbitrary, or wholly unreasonable, unnatural, or extraordinary. But so long as the legislature, in prescribing rules of evidence, in either civil or criminal cases, leaves a party fair opportunity to make his defense and to submit all the facts to the jury, to be*224 weighed on evidence legitimately bearing upon them, it is difficult to perceive how its acts can be assailed upon constitutional grounds.”
The same rule is stated in 12 C. J. 823, in the following language:
“Likewise, the legislature has power to give to evidence greater effect than it possesses at common law, and in both civil and criminal proceedings it may declare what shall be prima-facie evidence, and may regulate the burden of proof.”
See, also, State v. Thomas, 144 Ala. 77, 40 South. 271, 2 L. R. A. (N. S.) 1011, 113 Am. St. Rep. 17, 6 Ann. Cas. 747; Wooten v. State, 24 Fla. 335, 5 South. 39,1 L. R. A. 819; Meadowcroft v. People, 163 Ill. 56, 45 N. E. 991, 35 L. R. A. 176, 54 Am. St. Rep. 447; State v. Beach, 147 Ind. 74, 43 N. E. 949, 46 N. E. 145, 36 L. R. A. 179; Commonwealth v. Anselvich, 186 Mass. 376, 71 N. E. 790, 104 Am. St. Rep. 590; People v. Cannon, 139 N. Y. 32, 34 N. E. 759, 36 Am. St. Rep. 668; State v. Barrett, 138 N. C. 630, 50 S. E. 506, 1 L. R. A. (N. S.) 626.
While this question has never been before us in a criminal case, it was presented in Garson v. Steamboat Canal Co., 43 Nev. 298, 185 Pac. 801, 1119, where we held that no one has a vested right in a rule of evidence, and that the legislature has the undoubted right to prescribe such rules of evidence as may best promote justice. There is nothing in the case of State v. Pappas, 39 Nev. 40, 152 Pac. 571, in conflict with the view stated.
“Bishop, in his work on Criminal Law, in commenting upon Rex v. Snowley, 4 Car. & P. 390, uses the following language: ‘That when in reason, whenever a man claims to be a servant while getting into his possession by force of his claim the property to be embezzled, he should be held to be such on his trial for embezzlement. Why should not the rule of estoppel known throughout the entire civil department of our jurisdiction apply in the criminal? If it is applied here, then it settles the question; for by it, when a man has received a thing from another under a claim of agency, he cannot turn around and tell the principal, asking for the thing, “Sir, I was not your agent in taking it, but a deceiver and a scoundrel.” ’ Bishop, Crim. Law (3d ed.) sec. 367. In the seventh edition of the same work, like language, with some additions, is used at section 364 of volume 2. In Ex Parte Hedley, 31 Cal. 109, a case involving the same question, and in many respects similar to the one at bar, this court quoted, with marked approval, the foregoing extract from Bishop, and in an opinion*226 regarded as conclusive of the question here held that if an agent obtains the money of his principal in the capacity of agent, but in a manner not authorized, and converts the same to his own use, with intent, etc., it is money received ‘in the course of his employment’ as agent.”
See, also, Smith v. State, 53 Tex. Cr. R. 117, 109 S. W. 118, 17 L. R. A. (N. S.) 531, and note, 15 Ann. Cas. 435.
It is contended that the court erred in refusing to give a requested instruction to the effect that if the defendant “properly accounted” for the money he should be found not guilty. We fail to see any force in this contention. Whether the defendant properly accounted for the money was not a question of fact, but a question of law. The fact is that he deposited the money to the company’s account about June 30, after his return, and after the crime had been committed, if any was committed. If he had committed a crime his remorse, repentance and restoration of the money could not wipe it out. 20 C. J. 455; 9 R. C. L. 1298.
The evidence shows that the defendant, though authorized to fill out the check for only $12, on May 28 filled it out for $400, payable to himself, and procured that amount on it, paying therefrom two claims against the company, aggregating $64. It is also shown that on June 2 the president of the company made an appointment with the defendant to meet him the next day to draw checks upon the company’s bank account to pay the men who had been employed upon the property of the company. That night the defendant was married, and some time during the night, or the following day, left Reno, and was next heard from at Omaha, Neb., from which place the'telegram of June 5 was sent, which was followed on the two following days by letters signed by Young, Davies, and the defendant.
Let us assume that the cheek did not enter into the case at all. Suppose $400 in cash had been deposited with the defendant by the company, to be paid out when directed; that he paid out in fact on behalf of the company $64; that he had not been directed to pay out any further sum; that no demand had been made upon him for the balance; that he had failed to keep an appointment to draw checks upon the bank account of the company to pay its debts, but instead had left for Omaha, or some unstated destination — could it be said
The condition of the bank account being immaterial, the failure of the defendant to keep the appointment to sign the checks cannot be attributed, in law, to its shortage. The question is, then: What evidence is there in the record to show embezzlement? The money having been deposited with defendant for an indefinite time for a special purpose, and he not having been directed to use it for the purpose deposited, and no demand having been made upon him therefor, there must have been some evidence of his use of the money in a manner prohibited by the statute. There is no direct evidence of that fact, and a reliance to sustain that contention must rest largely upon the circumstance to which we have alluded, namely, the failure to keep the appointment. But, assuming that facts as recited did justify submitting the question to a jury, can we say that the defendant was not prej udiced by the court’s rej ecting the telegram offered in evidence?
8. It is also asserted that the court erred in instructing the jury as follows:
“The court instructs the jury that it must appear from the evidence that the defendant appropriated the money in question, as alleged in the indictment, or $50 or more of it, to his own use, with the intent to steal the same and to defraud the Greek Hills Trimetal Company thereof, and those facts must be proved beyond a reasonable doubt. Therefore, if you believe from the evidence, beyond a reasonable doubt, that the defendant, Donald A. Rothrock, was entrusted with and had given into his possession, the sum of money alleged in the indictment, and that it was so entrusted to him and given into his possession, as the secretary and treasurer of the Greek Hills Trimetal' Company, for the sole and only purpose of holding and keeping the same, as said secretary and treasurer, in payment of claims against the said Greek Hills Trimetal Company when duly and regularly authorized and. alio wed, and that, instead of holding and keeping and expending the same as he should have done, he appropriated it, or $50 or more of it, to his own use, with the intent to steal the same and to defraud the Greek Hills Trimetal Company thereof, that fact would constitute the crime of embezzlement as defined by the statute, and you should convict the defendant. The offense of embezzlement consists of two things: The act of taking money, and the intention with which it is taken.”
It is said that this instruction fails to cover a material element of embezzlement, namely, a conversion of the money with a fraudulent intent, and that the concluding sentence is contradictory of the rest of the instruction, and hence tended to confuse the jury, and constituted
Some other questions are discussed in the brief of appellant, but we think they are substantially disposed of by what we have said.
For the reasons pointed out, it is ordered that the judgment be reversed, and the case remanded for such further proceedings as may be deemed proper.
Concurrence Opinion
concurring:
This is an issue upon a plea of not guilty, interposed by appellant, an attorney at law, to an indictment charging him, as secretary and treasurer of a domestic corporation, with the crime of embezzlement, as declared by what I shall designate as the first clause of section 388 of the Crimes and Punishments Act (Rev. Laws, 6653), entitled “Embezzlement by Bailee or Other Person— Bailee Defined.” As the case is the first to reach this court for the violation of the provisions of that section in its condensed form, I shall treat the case as a precedent. The section reads as follows:
“Any bailee of any money, goods or property, who shall convert the same to his own use, with the intent to steal the same or to defraud the owner or owners thereof and any agent, manager or clerk of any person, corporation, association or partnership, or any peo'son, with tuhom any money, property or effects shall have been deposited or entrusted, %oho shall use or appropriate such money, property or effects or any part thereof in any*232 manner or for any other purpose than that for which the same was deposited or entrusted, shall be guilty of embezzlement, and shall be punished in the manner prescribed by law for the stealing or larceny of property of the kind and name of the money, goods, property or effects so taken, converted, stolen, used or appropriated. The term ‘bailee,’ as used in this section, shall be construed to include and mean all persons with whom any money, goods, or property has been deposited, and all persons to whom any goods or property has been loaned or hired, and all persons to whom any goods or property shall be delivered, for any purpose whatsoever, and all persons who shall, either as agent, collector, or servant, be empowered, authorized, or entrusted to carry, collect, or receive any money, goods or property of another; and any use of said money, goods, or property by any bailee thereof, other than that for which the same was borrowed, hired, deposited, carried, received, or collected, shall be prima-facie evidence of conversion and of intent to steal the same and defraud the owner or owners thereof.”
The history of that portion of the section relative to “bailee” antedates the organization of the state (Stats. 1861, p. 70), and has undergone two amendments — one to include conversion by bailee with intent to steal or to defraud, to define the term “bailee,” and to declare conversion by a bailee to be prima-facie evidence of intent to steal and defraud (Stats. 1875, p. 99) ;• the other, with respect to punishment (Stats. 1879, p. 123). In 1887, to further define and punish the crime of embezzlement, a supplemental act was adopted to include persons other than bailees (Stats. 1887, p. 81). The commissioners appointed in 1912 to revise our criminal law saw fit to loosely, and without discrimination, throw the act of 1887 into the section concerning embezzlement by bailee, by the transposition of terms and the use of conjunctive words. The italicized portion of the'section as quoted embraces the offense declared by the act of 1887.
It will be observed that officers of private corporations are nowhere in terms specified in the section. It was considered by the court in State v. Weber, 31 Nev. 385, 103 Pac. 411, that such officers fall within the term “any person,” as used in the act of 1887. It is surprising that such a large class should not have been at least named. For the sake of clearness, the compilers should have at least segregated officers of corporations, public or private, in a class by themselves, as has been done in all the other states, and thereby relieve the law of any confusion as to this class of persons.
Coming to the case at bar, I interpret the indictment to mean that the $400 alleged to have been intrusted to the defendant was a mere naked bailment (a depositum), which the defendant held wholly and exclusively for the benefit of the bailor (the corporation). By its averments, he was in the lawful receipt of the money; it was given into his possession by virtue of his office for a particular purpose, to be expended by him in a particular manner. It is averred that while so intrusted, and the money so in his custody, he converted the particular sum of money to his own use, coupled with intent to steal and defraud, the corporation, its owner. Though the defendant is not named as “bailee,” the indictment sets forth facts which clearly show that the money, at the time it is alleged to have been converted, was held
“We, the jury, find the defendant above named, Donald A. Rothrock, guilty as charged.”
The clause “guilty as charged” refers, of course, to the indictment for the facts which are specially found in the verdict, and the finding is not to be aided by reference to other facts upon which there was no finding; neither does it supply material omissions in the indictment.
I shall not recapitulate nor comment upon the evidence. But, upon a most careful study of the record, the facts, in my judgment, bring the defendant within that phase of the statute that makes “any person” guilty of embezzlement who shall use or appropriate money, goods, property, or effects intrusted to him for any other purpose than that for which the same was deposited or intrusted. State v. Weber, supra. The offense certainly had its inception in the defendant’s culpable act in filling in a blank check under color of his office, which had been previously signed by him as treasurer and countersigned by the president of the corporation, in conformity to the law of the corporation. The funds of the company, under resolutions of its board, were deposited in its name in the Farmers and Merchants National Bank of Reno, Nevada. In order to safeguard its funds, it was resolved by the board that all checks and drafts drawn against the funds of the company should be signed by its treasurer and' countersigned by its president. It appears, as stated, that the defendant had in his possession a check thus signed, which at the time of its .delivery to him was intended to be filled in by him to meet an obligation of the company for the small sum of $12. But, without the knowledge or consent of the president, defendant filled in the check to himself as
The evidence for the state consists mainly in detailing before the jury the animus furandi of the defendant in the withdrawal of the money from the bank for the sole purpose of appropriating it to his own use, with intent to steal and defraud. The j ury was instructed that the offense of embezzlement consists of two things — the act of taking money, and the intent with which it is taken. If this be the law of the case, the money was taken unlawfully. The intent to steal and defraud was conceived when the accused filled in the check for $400, and the conversion took place when he withdrew the money from the bank. The legal effect of all this evidence was to prove one charge for the purpose of sustaining some other charge. The defendant may unquestionably be guilty of some offense, but he cannot be convicted of one crime by proof of another, though of the same family. Ex Parte Rickey, 31 Nev. 94, 100 Pac. 134, 135 Am. St. Rep. 651.
The drafter of the indictment might have safely and sufficiently charged the defendant with the misuse and misappropriation of the money intrusted to him as an officer of the corporation in the language of the statute, by the use of a count to meet this phase of the evidence, but in this he failed. According to the indictment, the defendant received the money first bona fide, and then fraudulently converted it, with intent to steal and defraud. This is the crime expressed. Undoubtedly the material distinctions made by the statute escaped the
I do not wish to be understood as holding or saying that proof of one offense under the statute disproves the other. If it did, the offenses would be repugnant, and could not be joined in one indictment. They are not repugnant. State v. Trolson, 21 Nev. 429, 32 Pac. 930. But what I do say is that evidence of a distinct offense, such as that of embezzlement by an officer of a corporation, does not establish the offense of embezzlement by a bailee. I cannot say that, with the evidence of defendant’s fraudulent or felonious taking of the money from the bank eliminated from the case, the jury would have rendered the verdict it did.
It is suggested that the proof shows an actual embezzlement, involving one and the same transaction,. and, the evidence having gone to the jury without objection, to grant a new trial would countenance a defeat of j ustice by sacrificing substance to form. The difficulty with the state’s position throughout is that it interprets the term “any person,” as used in the section, to be a convertible term which applies to all classes of persons— bailees, agents, or any person — who appropriate to their own use the property of another, with or without intent to steal or defraud. This is true under the general definition of embezzlement, .and under some statutes such a general charge in an indictment would be sufficient; but not under a statute like ours, which does not define the offense, but simply declares who and under what circumstances the persons specified may be found guilty. I have repeatedly pointed out that under the indictment there was such a delivery of the $400 as to divest the owner of its possession and vest it in the accused. If the prosecution, to convict the defendant, intended to
It is proper that I should state that I am in accord with the disposition made by Justice Coleman of the alleged irregularities complained of up to the trial. I assent to the order granting a new trial solely for the reason that, upon my construction of the statute, my interpretation of the indictment and the evidence, no intelligent judgment can be rendered upon the verdict finding the defendant “guilty as charged.”
Rehearing
On Petition for Rehearing
Rehearing denied.
