31 Nev. 385 | Nev. | 1909
Appellant was tried and convicted of the crime of embezzlement in the First Judicial District Court in and for the County of Esmeralda, upon an indictment, the body of which reads as follows: "The said defendant, Henry Weber, on the 4th day of March, A. D. 1907, or thereabouts, and before the finding of this indictment, at the County of Esmeralda, State of Nevada, was then and there the president of the Doctor Mining Company, a corporation, and as such president of said corporation was then and there intrusted by Thomas Hooper with $10,000, lawful money of the United States, property of the Doctor Mining Company, a corporation, for the use and benefit of the said Doctor Mining Company, a corporation, and to be by him, the said Henry Weber, then and there deposited in and paid to the treasury of the Doctor Mining Company, a corporation, and the said Henry Weber did then and there convert and appropriate to his own use the said sum of $10,000, lawful money of the United States, property of said corporation, and all thereof, and did then and there fail, and has ever since failed, to deposit or pay the said sum of $10,000, or any part thereof, in the treasury of the said Doctor Mining Company, a corporation, all of which is contrary to the form, force, and effect of the statute? etc. From the judgment of conviction, and from an order denying his motion for a new trial, the defendant, Henry Weber, appeals.
1. It is contended by appellant, first, that the indictment fails to charge a public offense. The indictment was found under the provisions of section 1 of an act entitled " An act to further define and punish embezzlement” (Stats. 1887, p. 81, c. 76; Comp. Laws, 4804), which reads: "Any person, or any agent, manager or clerk of any person, corporation, association or partnership with whom any money, property or effects shall have been deposited or intrusted, who shall use or appropriate such money, property or effects' or any part thereof in any manner or for any other purpose than that for which the same was deposited or intrusted, shall be guilty of embezzlement.” It has been urged that, as the indictment simply describes the defendant as the president of the corporation,
2. A motion to quash the indictment was interposed upon the ground that no more than twelve grand jurors considered and voted upon, or were present when the indictment ivas returned into court. It is conceded by counsel for appellant that our statute in question was adopted from California, and that prior to its adoption the Supreme Court of California had held that an indictment, found and returned by at least twelve grand jurors, was valid. No contention is made that we ought now hold to the contrary, doubtless because no reason therefor suggests itself. (People v. Roberts, 6 Cal. 214; People v. Hunter, 54 Cal. 65.) See, also, State v. Williams, 31 Nev. 360.
3. The most serious contention upon the part of the appellant is that the evidence does not justify the verdict, and in this contention we agree. Thomas H. Hooper, upon the part of the state, testified that about the date mentioned in the indictment the defendant made a proposition to him to sell to him 100,000 shares of treasury stock of the Doctor Mining Company at 20 cents a share. Upon the payment of $20,000 for such stock, defendant was to give him an additional 100,000 shares of "bonus stock.” That the money to be paid for the stock was to go into the treasury of the company for development purposes. Hooper further testified that he subsequently learned who the officers of the company were; that Arthur Weber was the treasurer of the company; that he made out a check in the treasurer’s favor for $10,000 upon the John S. Cook & Co. Bank of Goldfield for $10,000, deliv
Assuming all of the testimony upon the part of the state to be true, and it fails in essential particulars to establish the crime of embezzlement. There was no direct testimony offered showing the legal organization of the Doctor Mining Company, who its officials were, or the amount and character of its capital stock. There is, however, testimony admitted without objection, and, nothing appearing to the contrary, from which it may be inferred that the Doctor Mining Company was a corporation; that the defendant was its president; that Arthur Weber was its treasurer; and that Eugene Pattberg was a director. There is nothing whatever in the evidence showing the amount, if any, of the treasury stock owned by the corporation, unless we should hold that the fact that Pattberg told defendant that "his” stock ledger showed that the 100,000 shares of stock of Captain Hooper, also some more, was charged up to the treasury account, and that there was no account opened up at the bank. Suppose
But assuming, for the purposes of this case, that the evidence is sufficient to show that the Doctor Mining Company was a corporation, owning at the time in question at least 100,000 shares of treasury stock; that the defendant sold such an amount of treasury stock to Captain Hooper for the agreed price of $20,000, and received from Captain Hooper, on account of such purchase price, his check made in favor of "Henry Weber, Prest, or order” as the check in question was made out; that the defendant gave the check to his agent, who took the same to the bank, and the bank debited the account of Captain Hooper with $10,000, and credited the personal account of the defendant with a like amount—still we have not a case of embezzlement.
The indictment charges the defendant with having been "intrusted by Thomas Hooper with $10,000, lawful money of the United States, property of the Doctor Mining Company;’ The indictment does not charge, and counsel for the state do not claim, that defendant embezzled the check. The introduction of the check was objected to upon the part of the defendant, and it was offered and admitted in evidence as preliminary to a showing that the money charged as having been embezzled was received upon the check. Conceding that the crediting of $10,000 to the defendant’s personal account was, in effect, the receipt of that amount by him, and yet we do not have anything constituting embezzlement. The transaction at the Cook Bank was nothing more than a matter
The record contains a number of other assignments of error, but the view we have taken upon the insufficiency of the evidence makes it unnecessary to consider them.
The judgment is reversed, and the cause remanded for a new trial. -