17 Haw. 231 | Haw. | 1905
OPINION OP THE COURT BY
The defendant was indicted, tried and convicted of the-offense of embezzling $1049.66, Sept. 20, 1903, belonging to one John Tallett, being money received by the defendant on a check dated September 8, 1903, drawn by A. N. Kepoikai on Bishop & Co., payable to the order of John Tallett. The jury found defendant guilty as charged, the defendant’s bill of exceptions averring that it was a verdict of “guilty of having embezzled the sum of $1049.66.”
The bill of exceptions refers to matters which appear only from examination of papers filed as exhibits and which, although alleged to be so, are not incorporated in the bill.
The following exceptions were allowed: 1, to overruling the-.
The foregoing exceptions, with the exception of 14 and 20, are overruled. They are, indeed, too frivolous to deserve comment. It is unfortunate for the administration of justice that trials should be delayed and useless expense caused to the Territory by trifling exceptions. Even if attorneys, who indulge in such practice, believe that they are impressing their client or jurors, the practice deserves censure. Perhaps the trial judge hesitates to rebuke attorneys for such things lest that may jrejudice the jury against the attorney’s client, but this court does not hesitate to pronounce its condemnation upon the practice. There are well established rules governing the form of questions to witnesses and the admissibility of evidence and an attorney is more likely to show his ignorance of those rules than to benefit his client by taking frequent and unmeaning exceptions to testimony.
We .now proceed to serious exceptions. The defendant’s case depended upon whether he had accounted for the money received by him on the Kepoikai check in favor of Tallett, its owner, by his transactions with Tallett’s daughter and son-in-law, the Tetzlafs and had done so in the honest belief, based on the facts within his knowledge, that the owner had held the Tetzlafs out by his former course of dealing as authorized to represent him concerning the disposition of the proceeds of the cheek; and did
The defendant, in his own testimony, claimed that Tallett’s son-in-law, Tetzlaf, coming to his office with Hayselden, who, as attorney for Tallett, had obtained the Kepoikai check, handed him the check'and, at the same time, ITayselden’s bill of $59. for services, requesting the defendant to pay the bill and take it out of the check, which he did; that Tallett’s daughter afterwards talked with him about disposing of the proceeds of the check by depositing it for her youngest child, which he advised her not to do, suggesting that it be deposited in her own name or some other and that afterwards Tetzlaf, in the presence of his wife, at the defendant’s office, suggested that the defendant give him his demand note as he was in charge of defendant’s business and had the privilege of taking money out of the business, and that the daughter said that was agreeable to her and the following-morning defendant gave Tetzlaf his demand note for the money payable to Mrs. Tetzlaf’s order; that on account of that note defendant, besides the $59 item to Hayselden, paid other sums, including $77 paid to the deputy tax assessor for Tallett’s taxes and various sums to Tetzlaf amounting to $649.66, for which he had Tetzlaf’s receipt “on acc. of A. N. Kepoikai check No. 551 for $1049 66-100 which was placed in his hands for deposit by my wife. 1. Bal. of $400 00-100,” concerning which Tetzlaf, August 13, 1904, wrote to the defendant: “Circumstances now compel me to ask you for an immediate settlement of the claim which I have against you amounting to $400.00 and the nature of which you are fully aware, as cash obtained from my wifq,” that on receipt of the letter he saw Mrs: Tetzlaf who told him she did not want him to pay over again the amount he had paid for her husband but wanted him to pay her some of the $400'
As to exceptions 22, 23 and 24, to refusal to give certain instructions not shown in the bill, they cannot be considered further than the requested instruction which does appear, viz.: “If you find that John Tallett’s agents, or either of them, accepted the promissory note of defendant wherein and whereby defendant promised to pay the money in question to said agents, or either of them, you must acquit the defendant,” the exception to the refusal to give which is overruled.
Exception 25, to an instruction which simply embodies the statutory definition of embezzlement, and also exception 33, ■instructing the jury that no demand was necessary to constitute the crime of embezzlement, are overruled.
The following instructions (Exceptions 26, 21, 28, 29, 30, 31 and 32) incorrectly state the law upon the subject:
“To constitute a conversion so as to make out a case of embezzlement, the owner must be deprived of his property or money by an adverse using or holding, but the means by which this is. accomplished are immaterial.
“If the jury believe from the evidence, that John Tallett did not hold out Charles Tetzlaf to the world as having authority to collect the moneys mentioned in the indictment or any part thereof, or did not knowingly permit the said Charles Tetzlaff to so act, then, any payment on account of said moneys by the defendant to the said Charles Tetzlaff is no payment to John Tallett the principal.
“One who deals with an agent is put upon inquiry as to the extent of the agent’s authority, and assumes the risk of the agent having authority to bind his principal in the transaction in which they are engaged.
“In order to create an agency by representation or estoppel,.
“In order that the principal may ratify the acts of an agent, the principal must have knowledge of all the facts pertaining to the transaction.
If “Charles Tetzlaff assumed to act on behalf of Maria Tetzlaff, and induced the defendant to pay to the said Maria Tetzlaff certain moneys on account of the moneys mentioned in the indictment and (that) the said Charles Tetzlaff made the representation that it was to be payment on account of the said moneys mentioned in the indictment, and if the jury believe from the evidence, that the said Maria Tetzlaff received the money so procured from the defendant, but that the said Maria Tetzlaff had no knowledge of the representation made by the said Charles Tetzlaff, then the jury are instructed that the said Maria Tetzlaff did not ratify the act of the said Charles Tetzlaff ■and the representation made by him in regard thereto.
If “the money representing the proceeds of the check of A. N. Kepoikai, to John Tallett for $1049.66, and dated September 8, 1903, was by the defendant converted to his own use and thereafter he made restoration of certain portions of the moneys so converted by him, that such act on his part is no defense.”
The foregoing instructions, if applicable in a .civil action for money had and received, are not appropriate to an indictment for embezzlement.
It is true that the jury were also instructed fully and correctly to the effect that they must find “that there existed in the mind of this defendant a conscious, wilful and felonious purpose to violate the law;” that “a failure to pay over the money does not raise any presumption of felonious conversion;” that if Tallett “at the date of the alleged embezzlement had lost the ownership of the property, then the jury should acquit,” and that if he appointed either of the Tetzlafs as his agent in the matter of this money “without restriction as to any special use to which the money w'as to be put, it was within the scope of said agent’s authority to loan the money to defendant and take his promissory note therefor, and if you find that said agent did loan the money to defendant you must acquit him;” also that if the Tetzlafs “were acting as the agents and had control of
Accordingly, exceptions 26, 27, 28, 29, 30, 31 and 32, to giving instructions which we have held to be wrong, are sustained.
We hardly think that the sustaining of exceptions 14 or 20 would require the verdict to be set aside. It is on account of the instructions excepted to as above that we decided, by decision filed herein December 6, that the sentence should be vacated,, the verdict set aside and a new trial ordered.