Bartley v. State

73 N.W. 744, 53 Neb. 310, 1898 Neb. LEXIS 412

• Court: Nebraska Supreme Court
• Decided: January 3, 1898
• Docket: No. 9347
• Status: Published

Opinion

Norval, J.

The defendant, Joseph S. Bartley, was convicted in the district court of Douglas cdunty of embezzlement of moneys belonging to the state while he was the treasurer thereof. Besides a fine in double the amount found by the jury to have been embezzled, a term of twenty years in the penitentiary was the punishment imposed, and to obtain a reversal of said judgment and sentence is the purpose of this proceeding.

The information filed in the court below by the county attorney was in eight counts, the first and second of which charged the embezzlement of a certain warrant, drawn by the auditor of public accounts upon the state treasury for the sum of $180,101.75. The remaining six counts set forth, in different forms, the embezzlement on the 2d day of. January, 1897, of $201,884.05 of the moneys belonging to the state, which defendant received by virtue of his said office of state treasurer. At the close of the testimony for the state, the county attorney entered a nolle proseqm as to the first two counts of the information, and upon the trial the accused was found guilty under the third count, but was acquitted,as to all the other counts upon which the prosecutor elected t.o rely for a conviction.

At this time it is not deemed essential to mention the various pleas, motions, and demurrers-filed preceding the selection of the jury, or to give a history of the trial, or any. statement of the facts revealed by the record. Such matters will be stated as we proceed with the investigation of the grounds urged for a reversal, at least so far as the same may seem necessary to an understanding of the propositions argued.

The first contention made in the brief of counsel for the accused is that the information under which the conviction was obtained should have been quashed, because of the alleged invalidity of the warrant on which the arrest was made. The original complaint was filed with the police judge of the city of Omaha, and the warrant in question was issued thereon, which recited that a complaint had been made under oath • before said judge charging that “Joseph S. Bartley, on or about the 25th day of April, A. D. 1895, within said county and within the city of Omaha, did commit the offense of embezzlement.” The argument is that the warrant of arrest does not recite the substance of the accusation against the prisoner as required by section 288 of the Criminal Code, and therefore is void. The warrant of arrest was not assailed before the magistrate, but the defendant waived a preliminary examination, and entered into a recognizance for his appearance in the district court to answer the charges preferred against him in the complaint. Objection to the sufficiency of said warrant was made for the first time in the trial court after the filing of the information therein by the county attorney. The question with which we have to deal is not whether the warrant of arrest should have been quashed on a proper objection before the magistrate, but whether the defects in said warrant have been waived by the failure to seasonably take advantage of the same. There is no room for doubt that if the warrant of arrest was bad, the defect was not available to the defendant after he waived his preliminary examination, and had entered into a recognizance for his appearance in the district court. He was not thereafter held by the writ, as that instrument had already performed its office, but stood upon his recognizance. Whether this warrant of arrest was good or bad was not a proper subject of inquiry in the district court. (Alderman v. State, 24 Neb. 97; State v. Downs, 8 Ind. 42; Williams v. State, 88 Ala. 80; State v. Stredder, 3 Kan. App. 631; State v. McManus, 4 Kan. App. 247.)

In the first case cited this court decided that the district court, upon a motion to quash an information, will not inquire into the validity of the complaint upon which the preliminary examination before the magistrate was had, the crime alleged being the same. The court in the opinion say: “We know of no rule of law which would entitle a person accused of a crime to attack the complaint upon which his preliminary examination was had, after the return of the indictment or information. So far as the power of the court to hold its jurisdiction over him is concerned, the complaint had served its purpose, and could not then be made the subject of attack.” It follows from the doctrine enunciated in that case that the defects in this warrant, which might have been fatal if seasonably presented before the magistrate, but which were not there raised, are not available in the district court on motion to quash the information. The two cases-cited by counsel for the accused are not in point. They tend to support the proposition that the warrant is fatally defective, but have no bearing whatever upon the question whether such objection can be urged for the first time on motion to quash the information..

The record discloses that the defendant was arraigned before the county court of Lancaster county on the 19th day of April, 1897, upon a complaint charging the accused with the embezzlement of the same auditor’s warrant and identical moneys mentioned in the information herein; that the defendant waived examination and entered into a recognizance for his appearance before the district court of said county at the next term thereof; that a transcript of the proceedings was lodged in the office of the clerk of said court on the following day, where on May 27 the information was filed by the county attorney, who on the same day entered a nolle prosequi; that the transcript of the proceedings before the police judge of the city of Omaha was filed in the district court of Douglas county on April 29, and that the information upon which the accused was tried was filed therein by the county attorney on May 15. A plea in abatement was filed on May 27, the county attorney replied thereto, and the plea in abatement was overruled by the trial court, which decision we are called upon to review.

In civil cases the rule is that the pendency of a former suit between the same parties may be pleaded in abatement where the judgment in such action would be a bar to a judgment in the second suit brought in another court ' of concurrent jurisdiction. (State v. North Lincoln S. R. Co., 34 Neb. 634; Monroe v. Reid, 46 Neb. 316.) The attorney general argues that this doctrine is not extended to prosecution for crimes. A former indictment or information pending in the same court for the same criminal offense constitutes no ground of abatement. In O'Meara v. State, 17 O. St. 515, Welch, J., observed: “It is insisted, in the first place, that the indictment under which the defendant was convicted is a nullity because of the pend-ency of a former indictment for the same offense, at the time it was found. We know of no such law. The last •indictment is as.valid as the first. Two indictments for the same offense are often pending at the same time. The state can only proceed upon one of them, but may elect upon which it will proceed. Of course, the right of election-implies that both are good and lawful indictments.” Chief Justice Shaw, in delivering the opinion of the court in Commonwealth v. Drew, 57 Mass. 279, used this language: “It appears to us to be a settled rule of law, that the pendency of one indictment is no good plea in abatement to another indictment for the same cause. Whenever either of them — and it is immaterial which— is tried, and a judgment rendered on it, such judgment will afford a good plea .in bar to the other, either of autrefois convict or autrefois acquit. But Avhere it is found that there is some mistake in an indictment, as a Avrong name or addition, or the like, and the grand jury can be again appealed to, as there can be no amendment of an indictment by the court, the proper course is for the grand jury to return a new indictment, avoiding the defects in the first; and it is no good ground of abatement, that the former has not been actually discontinued, when the latter is returned.” The authorities are quite uniform in holding that the pendency of a former indictment for the same offense in the same court is no ground for abatement. (Wharton, Criminal Pl. & Pr. sec. 452; Dutton v. State, 5 Ind. 533; Hardin v. State, 22 Ind. 347; Smith v. Commonwealth, 104 Pa. St. 339; Commonwealth v. Murphy, 65 Mass. 472; Commonwealth v. Berry, 71 Mass. 93; Commonwealth v. Cody, 42 N. E. Rep. [Mass.] 575; Eldridge v. State, 9 So. Rep. [Fla.] 448; State v. Security Bank; 51 N. W. Rep. [S. Dak.] 337; State v. Curtis, 22 Kan. 386; State v. Hastings, 86 N. Car. 596; State v. Lambert, 9 Nev. 321; Bailey v. State, 11 Tex. App. 140.)

Counsel for the accused insist the doctrine that a former indictment in the same court is no ground for abatement is not applicable to prosecutions for the same offense in two courts having concurrent jurisdiction thereof. We think this is true. Undoubtedly, where' two courts have concurrent jurisdiction of a crime, the court first obtaining jurisdiction acquires exclusive control to the exclusion of the other. (Wharton, Criminal PI. & Pr. sec. 452, and cases there cited.) It logically follows that the pendency of a prior indictment or information in another court having jurisdiction of the identical offense may be pleaded in abatement of the second prosecution. (See 1 Wharton, Criminal Law sec. 521; State v. Tisdale, 2 Dev. & Bat. [N. Car.] 160.) The justices and district courts have concurrent jurisdiction'of misdemeanors committed in their respective counties. Therefore, if an indictment should be returned by the grand jury to the district court charging the defendant with an assault and battery and during the pendency thereof, and before trial, the defendant should be arrested upon a complaint filed before a justice of the peace of the same county charging him with the commission of the identical offense, there is no reason why the pendency of the indictment should not be ground for abating the prosecution before the justice. Both tribunals have concurrent jurisdiction of the same criminal act. The complaint and information filed against Bartley in Lancaster county charged the crime of embezzlement as does the information herein, but the same criminal acts were not alleged. The jurisdiction of the district courts of Lancaster and Douglas counties is not concurrent in criminal actions, in such a sense as to give each original jurisdiction over offenses committed in either county. It is clear the pendency of the criminal action against the defendant in the Lancaster district court was not a bar to this prosecution. Manifestly this is true,- both upon reason and authority. Neither a conviction nor acquittal of the offense charged in one information would have constituted a bar to the prosecution under the other information, since ip one the venue, was laid in Douglas county, while in the other the offense is stated to have been committed in Lancaster county. This being true, unquestionably the fact that an information was pending against the accused in Lancaster county for the embezzlement of the same auditor’s warrant and moneys of the state described in the information herein would not abate this prosecution. The authorities cited by counsel for the defendant are easily distinguishable. All are civil cases except Commonwealth v. Churchill, 5 Mass. 174, which last case states that the pendency of a prior information or indictment for a crime will not abate a subsequent prosecution for the same offense.

It is argued that the court below erred in not sustaining the demurrer interposed to the .first count of the information, which charged the embezzlement by the defendant of a certain warrant drawn by the auditor of public accounts upon the state treasury. This ruling is not available, since it was not prejudicial to the rights of tlie accused, owing to the fact that the county attorney at the close of the state’s testimony entered a nolle prosequi as to the first and second counts of the information. (Davis v. State, 51 Neb. 301.)

It is suggested, if the demurrer had been sustained, no evidence in support of the first count of the information would have been adduced. Doubtless this is true; but the admission of the testimony with respect to the warrant was equally competent to establish the charge contained in the count of the information under which the conviction was had, since the embezzlement of the moneys therein mentioned is predicated upon the fact that the accused paid said warrant out of the moneys belonging to the state. The facts surrounding the issuance of this warrant, and the disposition thereof by tlie defendant, were admissible to show the guilty intent of the accused in the commission of the crime of embezzling the money which was used to pay the warrant, as will hereafter more fully appear. (Commonwealth v. Shepard, 83 Mass. 575.)

It is strenuously insisted that the third count of the information, — the one upon which the accused was convicted, — is fatally defective, inasmuch as the county and state in which the embezzlement was committed are not mentioned in said count. It is therein averred: “That the said Joseph S. Bartley, on the 2d day of January, A. D. 1897, in the county aforesaid, then and there being in said county,” etc. These words unquestionably referred to the county of Douglas named in the venue at the top of the information, and set forth in the first count thereof. This is conceded by counsel for the accused, but they argue that such reference is not permissible, because the venue — “The State of Nebraska, County of Douglas, ss.” — is no part of the information, and that, the prosecutor having entered a nolle as to the first count, such count cannot be considered for any purpose, but the information must be treated precisely the same as though the first count never had been inserted. Whether the caption is or is not a part of an information, it is unnecessary to determine. The venue given at the top of this information, it is very evident, was made a part thereof by reference had. thereto in the third count of the information. This doctrine Avas recognized and applied, with respect to a criminal complaint before a justice of the peace, in Rema v. State, 52 Neb. 379. (See Rivers v. State, 144 Ind. 16; State v. Assmann, 46 S. Car. 554.) Moreover, the third count of the information Avith sufficient particularity designates the county where the offense charged was committed, Avlien read in connection with the first count of the information, where it is specifically alleged that the offense therein described was committed in the county of Douglas, in the state of Nebraska, no other county being referred to in the information. In the third count the averment is “In the county aforesaid, then and there being in said county.” This clearly indicates that the embezzlement stated in said count was committed in the same county mentioned in the first count, to-wit, Douglas county, in this state. It was unnecessary that the venue should haAre been therein more distinctly laid.' Where an information contains two or more counts, in the first of which the county and state are specifically stated, it is sufficient to allege in the other counts that the offense therein set forth was in the county aforesaid committed. (Criminal Code, sec. 412; Fisk v. State, 9 Neb. 62.)

The fact that the county attoimey entered a nolle prosequi as to the first count is not important. ' That act did not have the effect to strike said count from the information or record. The entering of the nolle, after the commencement of the trial, was equivalent to an acquittal of the offense charged in the first count; but the count still remained a part of the information, and it was competent, if it could, to supply the deficiencies, or aid the allegations, in the other counts. (Fisk v. State, 9 Neb. 62; Evans v. State, 24 O. St. 208; Commonwealth v. Clapp, 82 Mass. 237; State v. McAllister, 26 Me. 374; State v. Nelson, 29 Me. 329.) In Wills v. State, 8 Mo. 52, tlie indictment contained two counts, on tlie first of which a nolle prosequi was entered, and the time of committing the offense was only shown by reference to that. count. It was held that said count was not stricken, and a conviction could be properly had upon tlie second, although, without reference to the first, it was defective. To the same effect are Hutto v. State, 7 Tex. App. 44; Boles v. State, 13 Tex. App. 650.

Section 4, article 3, chapter 83, Compiled Statutes, declares: “It shall be the duty of the auditor: * * * Seventh. To direct prosecutions in tlie name of the state for all official delinquencies, in relation to the assessment, collection, and payment of tlie revenue, against all persons who by any means become possessed of public money or property, due or belonging to the state, and fail to pay over or deliver the same, and against all debtors of the state.” The proposition is advanced that this information is bad because it does not allege that the prosecution was instituted under tlie direction of the auditor of public accounts. To this we cannot agree. The statute makes it the duty of a county attorney to prosecute all criminal actions in his county, as well as to file in the district court all informations for crimes; and he may institute criminal proceedings against a public officer who is guilty of some official delinquency relating to payment of the revenues, whether directed by the auditor to do so or not. It will not do to say that the county attorney • cannot institute such a prosecution until he has been so directed by the auditor. The most that can be claimed for the provision of the statutes already quoted is that it is the duty of tlie county attorney to institute and prosecute a criminal action against a public officer who has made default in the assessment, collection, or payment of the public revenues, and not that the county attorney is powerless to take any steps towards instituting criminal prosecution against a defaulting state treasurer until after the auditor has given him instructions, to act. The state was not required to prove that this prosecution was brought by direction of the auditor; hence, it was wholly unnecessary for the information to aver such fact.

The count under which the conviction was obtained is assailed on the ground that the particular acts constituting the embezzlement of the moneys of the. state are not therein alleged. The offense is set forth in the information in the language of section 124 of the Criminal Code, which creates the crime of embezzlement by a public officer, and provides the punishment therefor. This was sufficient. It was not necessary for the prosecutor to set out the evidence relied upon to sustain a conviction, nor allege the particular act or acts in which the crime consisted. (Whitman v. State, 17 Neb. 224; Hodgkins v. State, 36 Neb. 160; State v. Jamison, 74 Ia. 602; Claassen v. United, States, 142 U. S. 140; Gibbs v. State, 41 Tex. 491; Bennett v. State, 62 Ark. 516; State v. Isensee, 12 Wash. 254.) The three authorities cited by the defendant do not support a contrary doctrine, as a cursory examination will disclose.

Hoyt v. State, 50 Ga. 313, was a prosecution for embezzlement. The indictment charged the defendant with the fraudulent conversion to his own use of certain moneys of the state of Georgia without detailing the manner by which the embezzlement was committed, and the court in passing upon the sufficiency of the averments held that “an indictment charging a defendant with having received a certain amount of money to be applied for the use or benefit of the bailor, Avith an allegation that on a certain day the defendant fraudulently converted a specific portion thereof to his own usé, is not demurrable on the ground of its being general, vague, and indefinite, and that it does not put the accused on notice of what he is called on to answer.”

In State v. Brandt, 41 Ia. 593, the question involved was whether an indictment which charged the crime of embezzlement in the language of the statute was sufficient. The court was equally divided in opinion.

In State v. Parsons, 54 Ia. 405, an indictment for embezzlement of public money was held bad, under the statutes of Iowa, because it omitted to charge that the defendant had failed to account for the money. The question we have been considering, was not decided in that case.

State v. King, 81 Ia. 587, was a conviction of a county treasurer for the embezzlement of county funds. The indictment therein, in addition to charging that the defendant did “unlawfully and feloniously embezzle and convert to his own use, without authority of law,” the money which he had received by virtue of his office, averred that he committed the crime by expending the money in his private business, and by permitting others to use and expend it in their private business transactions, and by using the money to pay the defendant’s own private debts. It was urged that each of those acts constitutes a separate offense, and that the indictment was therefore bad for duplicity, as changing three distinct crimes. The supreme court held otherwise, saying: “We are of the opinion that the indictment is sufficient. The gist of the offense is the wrongful conversion of the public money, and it is wholly immaterial and mere surplus-age to state whether the defendant used it in paying his .debts, in purchasing property, had it on deposit in bank, carried it on his person, or loaned it to others, and the fact that three different modes of concealing the money are set forth in .the indictment is wholly immaterial.” We do not entertain the least doubt that the information in the case at bar is not defective, because the evidential facts constituting the crime are not alleged.

The objection that the information is bad, inasmuch as it does not aver that a demand had been made upon the accused for the money which came into his custody by virtue of his office of state treasurer, is without merit. It might be different if the information had been framed upon the theory that the defendant was guilty of the crime of embezzlement by reason of his having failed to account and pay over the public moneys, which came into his hands, to his successor. This prosecution is conducted upon the specific charge that the defendant converted and embezzled to his own use during his official term certain of the moneys of the state; therefore no demand upon him for the money by his successor was necessary to be alleged, or proven upon the trial. We quite agree with the attorney general wherein he says: “If a demand were necessary, then a prosecution could not be maintained until demand was made, and compliance with the demand, within a reasonable time, would defeat the prosecution. On this theory the treasurer of the state could do with the money of the state what he pleased, — could invest it in mines, or on the-board of trade, — and be guilty of no crime, provided he accounted for the money within a reasonable time after demand. The statute says otherwise; and there is no warrant either in the statutes or decisions for a theory so pernicious.” The question under consideration was not passed upon in Bolln v. State, 51 Neb. 581. State v. Munch, 22 Minn. 67, cited by counsel for defendant, does not support their contention, but is in harmony with the conclusion we have reached. There were two indictments before the court in that case. In one, the defendant, as state treasurer, was charged with the embezzlement and conversion to his own use, of certain moneys belonging to the state of Minnesota, which he had received by virtue of his office. This indictment was sustained, although it contained no averment of a demand. The other indictment charged an embezzlement by reason of the failure of the defendant to pay the money over to his. successor in office, and was held defective because it did not allege that a demand for the money had been made upon the defendant by the successor in office.

.Another contention is that the trial court erred in not requiring the county attorney to elect, before entering upon the trial, upon which of the several counts of the information he would rely for a conviction. In Korth v. State, 46 Neb. 631, it was ruled that where different felonies of the same general character or grade are charged in separate counts of an information it is within the discretion of the trial judge to require the state to elect among the several counts, and his ruling in that regard will not be molested, unless there has been an abuse of discretion. In the case at bar, as in the one. to which reference has just been had, the county attorney made his election as to counts after the testimony for the state had been introduced. No abuse of discretion or prejudicial error is perceptible. The prosecutor elected to rely upon the six counts relating to the embezzlement of money, and, they having charged the same offense, he was not obliged to elect among them. (Candy v. State, 8 Neb. 482; Furst v. State, 31 Neb. 403; Aiken v. State, 41 Neb. 265; Hill v. State, 42 Neb. 503; Hurlburt v. State, 52 Neb. 428.

Alfred D. Cox, W. F. Church, Fred A. Tompkins, and George S. Mack were severally challenged by the defendant for cause, as being incompetent to serve as jurors, which challenges were overruled by the court, and the rulings are assigned for error. The question of the competency of the persons named to sit as jurors we are relieved of the necessity of considering, since the record fails to disclose that the accused exhausted all of his peremptory challenges. If he was not required to exhaust his peremptory challenges to exclude them from the panel, he was not prejudiced by the overruling of his challenge for cause. (Bohanan v. State, 15 Neb. 209; Palmer v. People, 4 Neb. 68; Jenkins v, Mitchell, 40 Neb. 664; Blenkiron v. State, 40 Neb. 11; Brumbach v. German Nat. Bank of Beatrice, 46 Neb. 540.)

Error is alleged in the overruling of the motion of the defendant, made at the close of the testimony advanced by the state, to direct a verdict of not guilty. For convenience this ruling will now be considered in connection with the assignment that the proofs are insufficient to sustain the verdict. •

There is no controversy as to the facts. During the two years immediately preceding the 6th day of January, 1897, the defendant was state treasurer, and exercised the duties of said office. The Omaha National Bank had been designated, under the laws of the state, for the depositing of the public funds, and the defendant kept on deposit in said bank, in pursuance of law, certain of the money which came into his hands by virtue of his office. The' legislature at the session thereof held in 1895, for the purpose of making good to the state sinking fund the amount of loss it had sustained by reason of the failure of the Capital National Bank of the city of Lincoln, passed a law appropriating out of the state general fund the sum of $180,101.75, which appropriation is in the language following: “For state sinking fund, one hundred eighty thousand and one hundred and one and seventy-five one-hundredths ($180,101.75) dollars, to reimburse said fund for same amount tied up in Capital National Bank.” (Session Laws 1895, ch. 88, p. 404.) Immediately upon the approval and taking effect of said appropriation, the defendant on the 10th day of April, 1895, made out in his own name, and presented to the auditor of public accounts, a voucher for the sum of money so appropriated for the replenishing of the state sinking fund, and caused the state auditor to issue on that date a warrant upon the state treasury for the payment of $180,101.75, which the defendant countersigned as state treasurer, the warrant being in words and figures following:

“$180,101.75. State of Nebraska. No. 95,241.

“Office of the Auditor of Public Accounts, “Lincoln, Nebr., Apr. 10,1895. “Treasurer of Nebraska,

“Pay to J. S. Bartley......, or order, one hundred eighty thousand one hundred one & 75-100 Dollars. For to Reimburse State Sinking Fund. In accordance with legislative appropriation approved April 10th, 1895; and charge General Fund.

“Countersigned:

“J. S; Bartley, “State Treasurer.

Eugene Moore, Auditor of PuMic Accounts. P. O. Hedlund,

“Deputy.”

This warrant was delivered to the defendant on the day it bears date, and he at once registered the same in the proper book in his office for payment, but omitted to enter upon said- book, in the proper column, the name of the person presenting the warrant for payment. Almost immediately thereafter the defendant indorsed his name upon the back of said warrant, and placed the same in the hands of the Omaha National Bank, or J. H. Millard, its president, for negotiation, and the latter, as agent for the defendant, sold the same to the Chemical National Bank of New York city for the face value. Pursuant to the directions of the defendant, the Omaha National Bank opened an individual account with him, and entered therein a credit to defendant on the 26th day of April, 1895, for the amount of the proceeds of- said warrant. This money was subsequently drawn out of the bank on the personal checks of the defendant. In November, 1896, the warrant was transmitted by the Chemical National Bank to the Omaha National Bank for collection. It was called for payment in order of registration, and on the 2d day of January, 1897, the defendant went to the city of Omaha, and into the Omaha National Bank, drew his check as state treasurer against the depository account of the state in said bank for the sum of $201,884.05, payable to the order of J. H. Millard, Pt., and delivered said check to the bank in payment of said auditor’s warrant, Avliich instrument he then and there received, and at the same instant of time the account of the state Avas charged on the books of said bank Avith the amount of said check, and the Chemical National Bank was credited Avitli a like sum.

The state relies for a conviction upon the redemption and payment of said auditor’s warrant by the defendant out of the public funds of the state on deposit in the Omaha National Bank. The theory of the attorney general is that the warrant was void and therefore the state treasurer had no right or authority to redeem it. On the other side, it is insisted that the instrument was a valid and binding obligation of the state, which the law required the defendant to pay upon the receipt by him of sufficient funds for that purpose. In our view it is wholly immaterial whether the warrant, in question was valid or void. If invalid, the defendant was not justified in paying it out of the money of the state under the circumstances disclosed by this record. It is argued, if it was not a valid instrument, it never has been paid. ' That the state is minus $201,884.05 by the transaction is an assured fact. Whether the state may or may not be able to recover the money from the Omaha National Bank, the Chemical National Bank, or any other corporation or person, is not material to the present inquiry. Doubtless, it is the duty of a state treasurer to pay, when he has available funds, a legal warrant drawn upon the treasury by the proper officer, to the person entitled thereto, and cannot be convicted of embezzlement for having done so. Had the defendant paid the warrant in question to the proper persoh, the case would present an entirely different aspect. The appropriation upon which the warrant was drawn was not made in favor of the defendant individually. The purpose of the legislature in passing the act was to transfer from the state general fund the sum ap•propriated to the state sinking fund, to reimburse the latter to the extent it had been depleted by the collapse of the Capital National Bank, and not to pay any debt it owed the defendant or to make a present to him of the said sum. The warrant did not belong to him, notwithstanding it was drawn payable to himself in his individual capacity, but he received it officially, in trust for the state, for and on behalf of the state sinking fund, as he well knew. The title to the warrant never vested in him, and he could not transfer to another by indorsement that which he never possessed. He could not divest the title of the state in the warrant by the sale thereof to the Chemical National Bank, since he possessed no power to sell or negotiate the instrument. Nor was the bank an “innocent purchaser” within the meaning of that term as applied to commercial paper, inasmuch as the warrant disclosed on its face the purpose and object for which it was drawn, and the bank was bound to know at its peril that the defendant had no title to the instrument. Moreover, warrants issued upon the state treasury by the auditor of public accounts are not negotiable instruments, in the sense that the indorsee thereof may become a bona fide purchaser. (School District v. Stough, 4 Neb. 357; Union P. R. Co. v. Buffalo County, 9 Neb. 452; Burlington & M. R. R. Co. v. Clay County, 13 Neb. 370; State v. Sabin, 39 Neb. 570; State v. Cook, 43 Neb. 318.) The foregoing authorities hold that school district orders and county warrants are not negotiable instruments, and, upon principle, warrants drawn by the state auditor are within the same category. Therefore, it cannot be successfully asserted that the state was required to pay the warrant to the indorsee, as the latter was not an innocent holder. The defendant had actual knowledge of the facts surrounding the issuance and attempted transfer of the warrant. He knew that it was the property of the state, and that he was not legally or morally required to pay the money called for therein to any person other than himself. When the money was in the treasury to meet this warrant, his sole duty in the premises was to take the money out of the general fund and turn the same into the sinking fund, — credit one fund with the amount, and charge the other fund with a like sum. He knowingly disregarded his duty in the premises, paid the money to a party not entitled thereto, and defrauded the state to the extent of the sum so paid. This constituted au embezzlement of the public moneys. (Bork v. People, 1 N. Y. Cr. Rep. 368.)

We know judicially that the state, on April 1, 1891, issued 190 relief bonds, each of the denomination of $1,000, payable in five years; that the money belonging to the permanent school fund of the state was invested in those bonds; that the same were retained by the state treasurer for safe-keeping, and that six of them were actually redeemed, paid, and canceled by the defendant as state treasurer on October 31, 1896. Suppose these bonds had been stolen from the treasury, and subsequently paid by defendant to the holder thereof, or defendant had sold the bonds after their maturity to the Omaha National Bank, applied the proceeds to his own use, and subsequently redeemed the same by taking the money out of the state treasury and paying the face of the bonds and accrued interest to said bank; could there be a shadow of doubt that the defendant would have been guilty of the embezzlement of the money of the state, notwithstanding the bonds were legal and binding instruments? We think not. There is no difference between the supposed cases and the one at bar, providing the warrant in question was paid with the moneys of the state, which proposition will now receive attention.

As already stated, the accused was convicted of embezzling a certain sum of public money. Section 124 of the Criminal Code, under the provisions whereof this prosecution was instituted, expurgating all words that are not essential to the present inquiry, provides that “If any officer * * * shall convert to his own use * * any portion of the public money, or any other funds,, property, bonds, securities, assets, or effects of any kind, received, controlled, or held by him for safe-keeping, transfer, or disbursement, * * * every such act shall be deemed and held in law to be an embezzlement o'f so much of the said moneys or other property, as aforesaid, as shall thus be converted, used,” etc. At the bar, as well as in the briefs of counsel, the proposition was argued with marked ability whether or not the word “money,” as employed in said section is a generic or specific term. For the purposes of this case, we shall assume that the construction of the statute contended for by the defendant is the proper one, namely, that the term “money” was used by the legislature in a specific sense. In other words, it means legal-tender coin, and also paper issued by the government, or by banks by lawful authority, and intended to pass and circulate as money. It is insisted on behalf of the accused that, under the foregoing definition, he did not embezzle money — actual coin or currency — belonging to the state. It is true the state had no specific coins or currency in the possession of the Omaha National Bank, as it had made no special deposit of money in said bank. The state, at the time of the delivery of the check in question to the bank, had on deposit therein, under the depository law, money in excess of the amount found by the jury to have been embezzled, which constituted the' bank the debtor of the state to that amount. (State v. Bartley, 39 Neb. 353; In re State Treasurer's Settlement, 51 Neb. 116.) It was conceded on the argument by counsel for the accused that if the latter had drawn from the depository bank the actual cash and then redeemed the warrant therewith, proof thereof would be sufficient to sustain the charge of embezzlement of money. As we view it the legal effect of the transaction, as it actually occurred, is not materially different. The defendant, as state treasurer, drew his check upon the Omaha National Bank for $201,884.05, payable to the order of the president thereof, and delivered the same to the payee, which, in connection with the acceptance of the check by the bank, the entry of the transaction upon' the books thereof, and the surrender of the warrant to the defendant, constituted a segregation or separation of the amount of dollars expressed in the check from the general mass of money in the bank as the portion belonging to the state, and passed the title to the latter-. In contemplation of the parties, and in the eye of the law, the segregation was as full and complete as though Mr. Millard, the president of the bank, upon the delivery of the check to him. had stepped into the vault, counted out $201,884.05, placed it upon the counter, charged the state with that amount on the bank books, credited the Chemical National Bank with a like sum, delivered the warrant to the defendant, and then returned the money to the vault from whence it came; or as if the check had been made payable to the defendant’s o wn order, by himself presented to the paying teller at the bank for payment, who selected from the mass of money in the bank the sum represented by the check, placed the same in a pile on the counter, and then, by direction of the defendant, applied the same in payment of the. warrant. To constitute embezzlement it was not necessary that the defendant himself should have acquired the physical or manual possession of the money. He, by his check, authorized and directed the bank to pay the money called for therein to “J. H. Millard, Pt.” The bank was thereby empowered to select and transfer the money to the payee, which in contemplation of law it did, although there was no actual handling of a dollar-in the entire transaction. In the language of Morse, Banks and Banking, sec. 451: “A credit given for the amount of a check by the bank upon which it is drawn is equivalent to, and will be treated as, a payment of the check. It is the same as if the money had been paid over the counter on the check, and then immediately paid back again to the acount or for the use for which the credit is given.” (See Oddie v. National City Bank of New York, 45 N. Y. 735.)

State v. Baumhager, 28 Minn. 226, was a conviction of the crime of embezzling public moneys intrusted to the defendant as county treasurer. The only proof to sustain the charge was that the defendant had $5,000 of county funds in his hands; that he caused the county auditor to give him credit on the auditor’s books for the amount of a county order which had been redeemed by the defendant’s predecessor in office, although he had never returned it to the auditor or obtained credit therefor. There was no evidence of an actual conversion by the defendant, nor that there was a shortage in his accounts as county treasurer. The proofs were held sufficient to sustain the conviction.

State v. Palmer, 40 Kan. 474, was a prosecution for obtaining-moneys under false pretenses. The evidence disclosed that one Oritwell drew liis check on a certain bank in favor of the defendant for $75; that the latter presented the check, and the bank paid it out of moneys deposited by Oritwell, and charged the same to his account. This was held to be the obtaining of the money of the prosecuting witness, although he had no specific money on deposit in the bank. It is true the defendant then obtained physical possession of the money. But suppose, instead of receiving-the actual cash, he had deposited the check and received credit for the amount on the books of the bank; proof of the commission of the offense of obtaining money under false pretenses would have been none the less complete, since the check was authority to the bank to segregate the amount of the money called for from the funds of the bank, and, when made, such portion at the same instant became the specific property of the prosecuting witness. Likewise, the very moment the money represented by the check drawn in payment of the warrant in question was separated from the general mass of money in the Omaha National Bank, the title to the money thus segregated passed* from the bank to the state for an instant of time.

Roberts v. People, 9 Colo. 458, was a conviction for obtaining the moneys of Arapahoe county under false pretenses. The proofs showed that the defendant procured a false claim against the county to be audited, and a warrant drawn on the treasury for the same, which was paid. There was no evidence to show that the defendant presented the warrant for payment or received the money thereon. The court held this omission immaterial, saying: “It was not necessary that defendant should himself present' it to the treasury in order to realize the money, or in order that the county should be defrauded of its money by the acts of the defendant.”

In People v. McKinney, 10 Mich. 54, the doctrine was announced and enforced that any act by a state treasurer, by which the money oí the state should be abstracted from the treasury, or diverted from its proper use, with intent to apply it to his benefit, constitutes the crime of embezzlement. The contention was that the defendant was not present when the misappropriation took place. Christiancy, J., as the mouthpiece of the court, used this language: “The whole force of this objection, therefore, rests upon the assumption that the treasurer could perform no act by which the money could be thus abstracted or converted to his own use or benefit, unless at the time of the act he were personally present where the money happened to be. This assumption is so manifestly unfounded in law or fact, as to require no comment.” (See in this connection People v. Bringard, 39 Mich. 22.)

Bork v. People, 16 Hun [N. Y.] 476, was a conviction of the defendant for embezzlement of $1,000 of the money of the city of Buffalo, in his hands as treasurer of said city. Smith, J., delivering the opinion of the court, observed: “The funds which the treasurer is alleged to have embezzled in the present ease may have been a mere credit in a bank,'and not money at all, and yet'if he treated the credit as cash in his hands belonging to the city, proof that he embezzled it would support an indictment for embezzling money. The rule requiring certainty in an indictment is not to be so applied as to defeat the ends of public justice.”

A case precisely in point is State v. Krug, 12 Wash. 288, which was a prosecution for the embezzlement of the moneys of the city of Seattle by the treasurer thereof. The evidence disclosed that the defendant, as such officer, drew a check for $10,000 in favor of one Fuhrman upon a bank having funds of the city on deposit in excess of said amount. The payee presented the check and received in payment thereof New York exchange. The bank charged on its books the money to the city, and lessened its credit in said sum. The jury were instructed that the transaction constituted a payment of money, and that, they should construe the check or instrument merely as the instrumentality by which the money of the city was transferred from the possession of the defendant. In reviewing the instruction, the supreme court in the opinion say: “Under these facts the appellant claims there was only an exchange of credits and no money was paid. The instruction of the court is based upon the theory that, in contemplation of'law at least, this was money. It would be a travesty upon the administration of the law, if treasurers who are the custodians of the funds of the people should be allowed to escape the penalty of embezzlement by any such subterfuge as this theory would protect. * * * The practical result of the transaction in this case was that, when this check was given to Fuhrman, and was paid to Fuhrman by the New York exchange, and that amount charged to the account of the city, the city of Seattle had its account decreased to the amount of the check, and it was just as much' a disposition of that $10,000 by the treasurer as though he had gone to the bank and got the money himself, and paid it to Fuhrman, or had loaned him that amount of money out of specie which he received, before it had been taken to the bank.” Argument is unnecessary to show that the principle enunciated in that decision, if followed, controls the case at bar.

An examination of the authorities relied upon by counsel for defendant reveals that they do not support their contention. Without unduly extending this opinion, we' can do no more than to make a brief reference to the leading cases cited by them.

In Hamilton v. State, 60 Ind. 193, it was held that proof of the larceny of national bank notes did not sustain the charge of the larceny of a certain sum “of lawful money of the United States.” In Tracy v. State, 46 Neb. 361, this court held the contrary to be true.

In Williams v. State, 12 S. & M. [Miss.] 58, it was decided that a charge for betting money was,not sustained by proof of the betting of United States treasury warrants. Of the same import are Pryor v. Commonwealth, 2 Dana [Ky.] 298; Garner v. State, 5 Yerg. [Tenn.] 158.

In Carr v. State, 16 So. Rep. [Ala.] 155, a banker was indicted for the embezzlement of a certain special deposit of money, and it was ruled that the averment was not sustained by proof of the embezzlement of a bank check.

Thalheim v. State, 20 So. Rep. [Fla.] 948, was a prosecution for the embezzlement of money. It was held that assets generally and property generally were not included in the term “money.”

In Banks v. State, 28 Tex. 644, it was decided that proof of the theft of a mare would not sustain an indictment for larceny of a “horse,” since the statute of Texas did not employ the word “horse” in a generic sense. Of like purport are Turley v. State, 22 Tenn. 323; Jordt v. State, 31 Tex. 571.

In Commonwealth v. Hawe, 132 Mass. 250, the indictment was for obtaining a certain sum of money by false pretenses, which charge, it was ruled, was not sustained by proof of obtaining a certificate of deposit of a bank. I-Iad the certificate been presented to the bank and paid, the case might have some bearing upon the. question here.

Lindsay v. State, 19 Ala. 560, is to the point that an indictment for selling whiskey is not supported by proof of the sale of any other kind of liquor.

Lewis v. State, 28 Tex. App. 140, was a prosecution for the misappropriation of public money. It was held that the term “money” within, the meaning of the Criminal (’ode, is “legal-tender metallic coins, or legal-tender currency of the United States.” In the preceding discussion we have assumed that to be the rule in this state.

Both upon reason and authority we are constrained to hold that the charge of embezzlement of money contained in the third count of the information herein is sustained by the evidence adduced, and that it was not error to decline to direct a verdict of not guilty.

It is insisted that there was error in the admission of evidence of certain letters between the juesident of the Omaha National Bank and the president of the Chemical National Bank of New York. The earliest portion of this, correspondence was a letter from the president of the Omaha National Bank inclosing the auditor’s warrant in question, offering to accept therefor its proceeds on the basis of a rate of interest at 6 per cent, if a greater rate would not be allowed. The answer to this letter was dated April 23, 1895. It advised the president of the Omaha National Bank of a credit of said bank with the Chemical National Bank of the sum of $180,550.77, as the proceeds of †1 sale of said warrant, pursuant to the offer contained in the letter of Mr. Millard. Mr. Balch, the assistant cashier of the Omaha National Bank, testified that he saw the defendant at that bank about 5 o’clock in the evening of the same day, or of the one immediately preceding that, on which he saw the letter first above referred to, and that between the day the warrant was sent to New' York and tin1 time the advice of the credit Avas received Avitness had a conversation Avith defendant, in which the former asked the latter Avliat disposition should b.e made of the proceeds of the Avarrant Avhen the Omaha National Bank got returns on it, and that defendant replied to open an account and pass it to his own individual credit. The Avitness further testified that, when the credit was given for the proceeds of the Avarrant by the Chemical National Bank, he carried out the instructions of defendant and placed the said proceeds to the personal credit of the latter on the books of the Omaha National Bank. A copy of his personal account was introduced in evidence, Avhich showed the credit was given as above indicated. It is unnecessary to go further into details to show that there was sufficient evidence to justify the conclusion that in disposing of the Avarrant Mr. Millard, the president of the Omaha National Bank, and the bank itself, were the agents of defendant. The evidence above and heroin-after detailed are portions of the proofs which established a common’purpose between the defendant and his agency in Omaha, which was the sale of the warrant to the Chemical National Bank. Whatever correspondence was necessary and proper for the consummation of this common design was admissible against the defendant, the party at whose instance we must assume, from the evidence, this correspondence was carried on. (Brown v. Horr, 21 Neb. 113.) This principle we think none the less applicable because the transaction entered into with a common purpose was not the ultimate fact sought to be established, but was relied upon to show the motive with which a- subsequent act growing out of and intimately connected with it, was done.

It is strenuously insisted that the county attorney unnecessarily made public, in the presence of members of the regular panel of jurors in open court, the alleged fact that there had been an attempt to bribe jurors to find in favor of the accused, and that from this prejudice must have been sustained by the defendant. From the affidavits submitted by defendant it might be concluded that the county attorney did make the statement attributed to him. On the other side, there were affidavits which corroborated the affidavit of Mr. Baldrige, the county attorney, to the effect that his statement in open court was as follows: “I have been informed by a juror on the regular panel that he has been approached by some outside party with a view to influencing his verdict in a case for trial in this court. I deem it my duty to bring this matter to the attention of tlie court in order that the court may make whatever order it deems necessary or proper in the premises, and that such punishment may be meted out to the guilty party as the court thinks warranted.” As to whether there was the alleged misconduct of the county attorney, or whether his conduct was as proper as above indicated, was a question of fact, which, upon conflicting evidence, was settled adversely 1o the accused. Under such circumstances the ruling of the trial court will not be disturbed. (Lindsay v. State, 46 Neb. 177; Grossman v. State, 46 Neb. 21; McMahon v. State, 46 Neb. 166; Carleton v. State, 43 Neb. 373.)

The trial court upon consideration of conflicting evidence concluded that there had been no misconduct on' the part of alleged detectives in shadowing or in attempting to communicate with or influence jurors while in charge of a bailiff of the court, and the principle just invoked must likewise preclude a consideration of the question of fact.

In respect to rulings of the court in denying the demand of the defendant that one of the detectives should be compelled to submit to an oral examination in open court touching the matters of fact just considered, and the denial of the demand that the county attorney should an-' swer orally Avith reference to alleged interviews concerning the conduct of the trial and other like matters, in some of which it was claimed the presiding judge had taken part, it is not deemed necessary to indulge in an extended discussion, for rulings of a like nature have been sustained by this court in Kountze v. Scott, 52 Neb. 460, and in Hamer v. McKinley-Lanning Loan & Trust Co., 52 Neb. 705.

In the progress of the examination of Mr. Millard, the president of the Omaha National Bank, he was interrogated with reference to the check drawn by Bartley on said bank for the amount which by the information he was charged Avith embezzling. In this connection the testimony and conduct complained of, omitting objections and the rulings thereon, were as follows:

“Q. You may state, Mr. Millard, hovv long that check was in your possession at that time?

“A. I don’t think it was ever in my possession, — personal possession.

“Q. How long was it in the bank?

“A. I think it was there two days.

“Q. Do you know Avhat became of it afterwards?

“A. It was returned to Mr. Bartley.

“Q. And tliat was how long ago?

“A. I would think about two months, or possibly three months ago — perhaps two and. a half months ago.

“Q. Did Mr. Bartley come for it at that time to the bank?

“A. No, sir.

“Q. Have you seen the check since?

“A. No, sir.

“Mr. Baldrige: I want to make in open court a formal demand upon the defendant and his attorneys to produce—

“Mr. Whedon: I object to any proceedings of this kind in the presence of the jury. There is no law for it and it is unprofessional.

' “Mr. Baldrige: The state in this case--

“Mr. Whedon: I object to any demand being made in the presence of this jury during the trial.

“By the court: The jury may retire to my room in charge of the bailiff. [Jury retired.]”

It is unnecessary to describe what transpired during the absence of the jury from the court room, and we shall, therefore, transcribe from the bill of exceptions the description of the proceedings, in the presence of the jury as we assume, when Mr. Millard, again having been called to the witness stand,was testifying with reference to this check. This part of the record is as follows:

“Mr. Baldrige: I want to say. that the state proposes to offer in evidence a notice given by the state of Nebraska to the defense to produce the check about which the witness is interrogated.

“Mr. Whedon: I move to strike out of the testimony and out of the record the statement of counsel, following the ruling of the court on the objection made by counsel, and except to the statement that has been made as improper and irrelevant.

“By the court: The objection overruled and the motion to strike out overruled.

“Mr. Mahoney: The defendant excepts.

“By the court: Befoi*e the "witness answers I waxxt to ask counsel for the state if they have the check in their possession. .

“Mr. Baldrige: No, sir; we have not.

“Mr. Whedon: The defeixdant objects to this testinioxxy and questions of the court and to the giving of testimony by Mr. Baldxlge, on the ground that the counsel for the state’s names are not xxpon or indorsed on the information as witnesses, and they are not competent to testify in the case, and move the court to strike out the testimony, for the reason counsel is not sworn to give the testimony.

“By the court; Objectioxx overruled. It is not a matter of evidence. It is a qxxestion for the court’s benefit. The jury will not consider any statement between counsel and the court in any manner in formixxg their verdict.

“Mr. Mahoney: The defendant excepts.”

In a later stage of the txial th.e notice to produce the aforesaid check was offered ixx evidence in the px’esenc-e of the jxxrv, and an objection thereto was sustained, wlu'x-eupon Mr. Baldrige said: “The offer was made generally and more particularly for the purpose of advising the court of the fact that due notice had been served upon the defense requesting them to deliver over to the state for their use ixx the trial the checks and papers set oxxt in the paper marked ‘Exhibit 12.’

“Mr. Mahoney: Defeixdant objects to putting into the record any offer of an offer and objects to incorporating into the record the statement of- counsel of the purpose of the offer, the offer being of a written instrument and defendant nxoves to strike out what the county attorney has placed in the record. •

“The court: The objection to the offer is sustained. The document may be retained as a paper of the files and may be filed in the case, but not received as a matter of evidence. The motion to strike out is overruled. Defendant excepts.”

This portion of the record has been copied for the reason that, perhaps, an attempt to describe it in a narrative form might work an injustice, for we Confess our inability to imagine in what respect the accused could have been prejudiced by what was said or done. It is disclosed by the bill of exceptions that secondary evidence descriptive of the check in question was offered, and it seems to us that in the preliminary steps leading thereto there was no misconduct on the part of counsel for the state or of the presiding judge. Whatever unfavorable inference to the accused could have been drawn by the jury from the transaction before them was corrected by the admonition that the jury were not to consider any statements between counsel and the court in any manner in forming their verdict. (Thalheim v. State, 20 So. Rep. [Fla.] 945; Hoover v. State, 48 Neb. 184.)

There were monthly statements made by the treasurer during defendant’s term to the auditor of public accounts offered in evidence, with respect to one of these, defendant’s deputy was asked what, if any, means Bartley would have for knowing the correctness of the report as to its details. To this question Mr. Baldrige objected and remarked: “Mr. Bartley might know everything that was in that report; he is the treasurer and is presumed' to know it. If he does not he himself should say so.” To this last remark Mr. Mahoney objected and excepted as improper, whereupon the court said: “It is improper and that language should not be indulged in in any manner or form as to what the defendant ought to say.” It may be conceded that the remark was improper and yet this was just how it was characterized by the court in its remark to the jury, and we cannot assume that this suggestion was ignored. It would unnecessarily prolong this opinion to attempt to describe the several instances Avherein it is insisted that the court improperly propounded questions to witnesses under examination. It must suffice to say that each of these alleged infractions of propriety has been carefully considered, and that we have found nothing which justifies an inference that from the course criticised in this respect any prejudice could have resulted to the accused.

It is urged that there was error in the admission in evidence of the official bond of defendant, for the reason the instrument in question, to render it valid, should have been approved on or before January 3, 1895, whereas in fact there was no approval till six days beyond said statutory limit. In support of this contention there is cited the case of State v. Lansing, 46 Neb. 514. In the case cited the contention was between parties each of whom claimed that he was county judge of Lancaster county. Lansing, the incumbent, was in possession, and it was asserted in the information, wrongfully so, for the reason that the mandatory requirement of the statute with reference to the approval of his bond had not been complied with. The statutory provision relied upon to sustain this contention was section-15, chapter 10, Compiled Statutes, which is in this language: “If any person elected or appointed to any office shall neglect to have his official bond executed and approved as provided by law, and filed for record within the time limited by this act, his office shall thereupon ipso facto become vacant, and such vacancy shall thereupon immediately be filled by election or appointment as the law may direct in other cases of vacancy in the same office.”

At the general election following that at which Lansing had been elected to the office of county judge for which he had failed to qualify, it was assumed' that the office was vacant and the relator was accordingly nominated to fill this vacancy and received the highest number of Azotes cast for that office. The action in which the opinion of this .court in State v. Lansing, supra, was filed was therefore one in which the title to the office was the subject-matter in dispute. Whether there was a vacancy by reason of Lansing’s failure to qualify was the pivotal question, and it was held that this failure was a fatal defect in his title. In the case at bar no one ever questioned the right of the defendant to hold the office of state treasurer for the term for which he was elected. That term, with all its honors and emoluments he has enjoyed, and after its expiration there is for the first time raised a question whether his incumbency was rightful, which question is raised by himself when charged with malfeasance in the* performance of its duties. That the opinion of this court in State v. Lansing, supra, has no tendency to support this contention of the defendant requires no elaboration to render perfectly clear. Whether defendant was an officer de jure or de facto, he was required to perform the duties which the law imposed upon him with integrity and loyalty to the state, and his failure in this respect should subject him to punishment regardless of liis technical right to be inducted into office. (State v. Goss, 69 Me. 22; State v. Mims, 26 Minn. 183; People v. Cobler, 108 Cal. 538; State v. Findley, 101 Mo. 217.)

It was urged that there were material variances between the auditor’s warrant which, it was charged, had been embezzled, and that which was offered in evidence. These alleged variances were that the warrant offered in evidence had certain figures in the upper left hand corner, and on its face the words: “Paid Jan. 2,1897. State of Nebraska. Treasurer’s office,” and on the back the words: “Presented and not paid for want of funds and registered for payment Apr. 10, 1895. Number 27932. J. S. Bartley, State Treasurer, Lincoln, Nebraska.” As to the counts whereby was charged the embezzlement of the warrant a nolle was entered, so that these alleged variances became immaterial. The figures consisted of two amounts which added together made up the amount with the embezzlement of which. Mr. Bartley was charged. The other alleged variances were placed upon the warrant by defendant, in one instance at least, and if not by himself the other was stamped upon the face of the warrant by one of the employés. in his office. In neither case was there what would amount to a spoliation and the warrant therefore was competent evidence of tlie facts in proof of which it co'uld be considered by the jury, and these have already been sufficiently noted.

On several of .the. exhibits offered in evidence there were stamped the words: “Otto Helbig, accountant. Examined. 501 Tacoma Bklg., Chicago.” These were explained by Mr. Helbig to have been placed upon the several exhibits to show that in making up his statement of the condition of the office of state treasure]- he had used the information conveyed by such exhibits. The exhibits themselves contained statements made by defendant as treasurer and only these were submitted to the jury. The words stamped by Mr. Helbig were not given in evidence, consequently they could not have operated to the prejudice of the accused.

For the defense, Mr. Bartlett, the deputy treasurer, testified on his direct examination that the keeping of the books in the treasurer’s office was under his supervision and that the manner in which the sinking fund account was carried was in pursuance of the direction of defendant. On cross-examination Mr. Bartlett testified as follows:

Q. The check referred to was the check in payment of the warrant, was it not?-

A. Yes, sir.

Q. But my question is as to the proceeds of the warrant when it was sold.

A. I never knew it was sold. * * *

Q. When did you first know that the warrant was sold?

A. Not until I wrote the stub for the payment of the warrant.

It is complained that the question-and answer last quoted were not in the line of cross-examination. We think otherwise. The item referred to was one which under certain conditions, according to the evidence of Mr. Bartlett, would have been entered in the sinking fund account. It did not there appear, and it was proper to ask Mr. Bartlett why the account showed no proceeds of the sale of the warrant and in this connection when he first learned of the fact of the sale. His answer was that he learned of this sale on or about the date of the check, which was January 2, 1897, and this certainly was a circumstance proper to be considered by the jury in connection with his direct examination which showed that his entries were in accordance with the directions of defendant.

It is insisted there was error in permitting E. E. Balch, assistant cashier of the Omaha National Bank, on cross-examination, to answer that prior to the date of the check designated as “Exhibit 49” all the money realized from the sale of the warrant in New York had been drawn out of the Omaha National Bank by defendant. This check bore the date of June 4, 1896. Of the same date was a deposit slip .showing a deposit by defendant of his individual check to the credit of himself as treasurer in the sum of f50,000. As this check corresponded with that designated as “Exhibit 49” it was not an abuse of discretion for the court to permit the cross-examination of the witness to anticipate a possible argument founded on the above noted coincidences by his testimony that the proceeds of the sale of the warrant, previous to June 4, 1896, had been withdrawn from the bank by defendant. In this connection it is proper to remark there was no abuse of discretion in admitting in evidence, for the purposes first indicated, the portion of the general fund account of Mr. Bartley with the Omaha National Bank of date about June 4, 1896, and certain exhibits connected with the same subject-matter. (People v. McKinney, 10 Mich. 54.)

Exhibit 35 was a statement showing the receipts and disbursements of the state' treasury in June, 1896, filed in the department of the auditor of public accounts of the state of Nebraska. This statement was signed “J. S. Bartley, State Treasurer.” It was urged that there was error in refusing to permit the deputy treasurer to testify whether or not this statement was prepared by the subordinate force in the treasurer’s office. It is not claimed that any of these items in fact was incorrect, and therefore there was no admission by which the defendant would not be bound as well when written by a clerk as when written by himself. If there had been any claim of mistake or oversight this might be different. But even then, when it had been shown that the statement, had been signed by defendant, it devolved on him to rebut the presumption that the statement was correct.

We cannot understand what proper purpose could have been' subserved if the defendant had been permitted to prove the usual media by which remittances were made to the state treasurer by county treasurers. It seems to be intimated in argument, as we understand it, that if it had been permitted to be shown that these were usually in drafts, checks, etc., that this fact might have justified the deposit in banks other than depositories. The statute on this subject prescribes where deposits must be made and must govern, and no excuse can dispense with its provisions.

Mr. Helbig, an expert accountant, on rebuttal, was permitted to testify that he had made an examination of the books of the treasurer’s office, and that from the examination he had ascertained the amount of the general fund on hand at different times, as well as the several amounts of expenditures and disbursements therefrom, together with other items as to various other accounts disclosed by said books. He further testified that all the said books, together with the memoranda he had consulted in connection with them, were present in the court room at the time his testimony was given. Thereupon the court permitted the witness to testify with reference to the conditions above indicated, and this, it is insisted, was prejudicial error. In his discussion of exceptions to the rule requiring the production of. the best evidence, Prof. Greenleaf said: “A further relaxation of the rule has been admitted, where the evidence' is the result of voluminous facts or of the inspection of many books and papers, the examination of which could not conveniently take place in court.” (1 Greenleaf, Evidence sec. 93.) This exception has been recognized in Masonic Mutual Benefit Society v. Lackland, 97 Mo. 137, and in State v. Findley, 101 Mo. 217, and by the supreme court of Oregon in State v. Reinhart, 38 Pac. Rep. 822. In Hollingsworth v. State, 111 Ind. 289, it was held that in a prosecution for embezzlement, or other crime, where the books, records, papers, and entries are voluminous and of such a character as to render it difficult for the jury to arrive at a correct conclusion as to amounts, expert accountants may be allowed to examine such books, etc., and testify to the result. No adjudicated case in opposition to this exception to the general rule requiring the production of the best evidence has been cited, and we are satisfied that where, as in this instance, the sources from which the expert.accountant derived his knowledge were present in the court room subject t'o inspection he was properly permitted to testify as he did with reference to what was shown by such books and documents.

In the act entitled “An act to provide for the depositing of state and county funds in banks” (Session Laws 1891, p. 347) it was provided that the depository bond should be, .in substance, of the form set out in said act. This form closed with the words: “Sealed with our seals and dated the-- day of-, A. D.-.” There was no seal opposite the signatures -to the depository bond which was given by the Omaha National Bank, from which consideration it is urged that the bond was invalid, and therefore the bank was not legally a depository. • In this case this failure to attach seals is unavailable to defendant, for whether the seals are essential and whether from the want of them the bank was not entitled to receive state deposits are immaterial matters. If defendant entertained doubts as to whether the bank was in fact a depository he might have been justified in satisfying himself upon that point before making deposits, but he cannot now be heard to stultify himself by asserting when the matter becomes a collateral issue that he deposited the money of the state during his term of office in a bank wherein by law he was forbidden to make such deposits.

We pass to the consideration of the instructions giveu and refused. It is insisted the trial court erred in its third paragraph of the charge in saying to the jury that the information charged the defendant with the emtez zlement of certain public money in the county of Douglas. This contention is predicated upon the fact that the counts relating to the misappropriation of the money contain no specific statement that the crime was committed in Douglas county. The place of the offense, as shown elsewhere in this opinion, was sufficiently averred by proper and suitable reference to the first count of the information and the venue, in each of which the county of Douglas is set forth, and that such reference was permissible even though a nolle to the first count of the information had been entered. This is a sufficient answer to the foregoing criticism m'ade upon the instructions.

Objection is made to the eighth instruction, which reads: “The state having entered a nolle of the first and second counts of the information you will not consider the testimony relative to the warrant, known as ‘Exhibit 4/ or any transaction concerning the same, except only and for the purpose of showing the criminal intent of the defendant of and concerning the charge of the embezzlement of the $201,884.05.” No error prejudicial to the accused is perceptible in the foregoing language of the court. It contained no assumption that the defendant acted with a criminal intent, but advised the jury, and properly so, that they might consider' the evidence of and concerning the warrant for the purpose of ascertaining whether the defendant was actuated by a guilty intent or motive in appropriating the money alleged to have been embezzled. The evidence tended to show that the negotiation of the warrant and the subsequent payment thereof were parts of the same common design and purpose, parts of the same transaction, although not transpiring at the same time, and when construed together make manifest the purpose of the defendant to misappropriate to his own use the money of the state. (People v. Cobler, 108 Cal. 538.)

The eleventh instruction reads thus: “If you find from the evidence that the Omaha National Bank executed a bond to the state of Nebraska, asking to be.designated as a state depository of public money of the state, and that such bond was approved by the governor, secretary of state, and attorney general, then you should find the Omaha National Bank was a state depository of the current funds of the state.” It is argued that this instruction is faulty because the jury were not advised as to the form of the bond necessary to be given by the Omaha National Bank to constitute it a state depository. If the defendant desired the jury instructed on that point he should have tendered one to the trial judge. Mere non-direction of the court is no ground for reversal. (Hill v. State, 42 Neb. 503; Housh v. State, 43 Neb. 163; Pjarrou v. State, 47 Neb. 294.)

By the twelfth instruction the jury were told that: “The term ‘conversion of money’ means an unauthorized assumption and exercise of the right of ownership over the moneys belonging to another, and the alteration of its condition to the exclusion of the owner’s right; and such conversion must be with the intention to use or dispose of the said moneys for the benefit of the person converting it, or to the benefit of some other person or corporation than the owner thereof; and it would be a conversion in law even though the party intended at the time of the appropriation at some future time to repay the money so appropriated.” The only criticism upon the language is the use of the words “appropriation” and “appropriated.” The prefix “mis” should have preceded each of those words in order to have made the expression technically accurate. We are, however, satisfied that the omission thereof was not prejudicial to tlie accused, since the instruction as a whole when read in connection with the remainder of the charge made plain to the jury that there could be no conviction unless there was a misappropriation of the public money, — in other words, that the -appropriation must have been wrongful. It is a rule of universal application that instructions must be considered together, and if then they correctly announce the rule, they will be upheld. (Davis v. State, 51 Neb. 301; Ford v. State, 46 Neb. 390; Carleton v. State, 13 Neb. 373.)

The thirteenth instruction requires no discussion,- since it raises the question whether to prove the offense charged it was necessary that specie should have been received on the check given in payment of the auditor’s warrant. The instruction is in harmony with the views expressed in another part of this opinion upon the motion to direct a verdict and the sufficiency of the evidence to sustain the conviction. Further elaboration of the point would be superfluous.

It is urged that the court erred in assuming in the tenth, eleventh, and fifteenth paragraphs of the charge the validity of the depository law. An elaborate argument is made in the briefs against the validity of that piece of legislation on grounds other than those heretofore considered by this court. We must be excused from entering upon a discussion of the subject at this time, as the defendant is in no position now to assert that the public moneys of the state were not rightfully on deposit in the Omaha National Bank. He recognized the validity of the statute by placing the moneys of the state in said bank, and it would indeed be a reproach upon the law to permit him to assail the depository law in a prosecution for the embezzlement of the public funds so deposited by him. It was the money of the state that went into the bank, and it was likewise the money of the state that paid the check* whether the bank was a. lawful state depository or not.

Complaint is made of the fourteenth instruction. It, in effect, told the jury that if the defendant disposed of the warrant in question, or caused it to be done, or secured credit for the same, in his individual capacity and for his own use, or for the use of any other person except the state, and if, as state treasurer, he paid the warrant with state funds, that would constitute embezzlement of the money with which the warrant Avas paid. The argument is that the warrant was valid, and it was the duty, of the defendant to pay it in the order of registration. The position is unsound as Ave have already demonstrated, at least to our oAvn satisfaction.' It is further said this instruction authorized the jury to find the defendant guilty of embezzling the warrant, although the counts charging the misappropriation of that instrument had been nolled. There is no merit in this contention. If certain facts were established, it permitted a conviction for the conAmrsion of the money alone.

The fifteenth instruction is in this language: “If you find from the evidence that the Omaha National Bank was a state depository, and if you further find the defendant drew a check upon said bank against the funds of the state therein deposited to the credit of the state, and that said check was paid at said bank, that would constitute a taking of public money of the state by the defendant at the bank, whether the defendant was present at the time of payment of the check or not; nor would it be material whether the check was drawn in-favor of the defendant or not, of by whom presented.” It is suggested by counsel that under this instruction it Avould be a conversion by defendant, had a check drawn by him in his official capacity on said bank, but not delivered, been stolen from the defendant, the name of the payee forged thereon, and then presented to and paid by the bank. If there were any evidence tending to show any such state of facts there might be some foundation for the criticism directed against the instruction. But no such testimony was admitted on the trial, while it was established beyond dispute that the defendant in person presented the check to the bank for payment. The instruction, therq^ore, could not have misled the jury by reason of the matter suggested, nor because it stated that it was immaterial whether defendant was present or not when the check was paid. Moreover, we do not think it was necessary for the defendant to have been in Douglas county when the check was presented and paid to make the offense complete in that county. Had he sent the check by mail or messenger to take up the warrant, still the misappropriation of the funds would have taken place in that county on the payment of the check there. (People v. McKinney, 10 Mich. 54; Norris v. State, 25 O. St. 217; Commonwealth v. Taylor, 105 Mass. 172; Commonwealth v. Wood, 142 Mass. 459; Commonwealth v. Karpowski, 167 Pa. St. 225.)

The sixteenth instruction is not incoherent, but is logical and easily understood. The seventeenth instruction related to the testimony of expert accountants, the substance thereof being that the testimony of such witnesses should be given such weight as the jury considered them entitled to. This was not giving undue prominence to the testimony of that class of witnesses.

The twenty-first instruction is criticised, which reads as follows: '“‘A reasonable doubt,’ as used in these instructions, to justify an acquittal, must be a reasonable one arising from a candid and impartial investigation of all the evidence in the case. A doubt produced by an undue sensibility in the mind of any juror in view of the consequences of his verdict is ,not a reasonable doubt, and the juror is not allowed to create sources of materials of doubt by resorting to trivial or fanciful suppositions and remote conjectures as to a possible state of facts differing from those established by the evidence. You are not at liberty to disbelieve as jurors if from all the evidence you believe as men. Your oath imposes on yon no obligation, to doubt where no doubt would exist if no oath had been administered. If after a careful and impartial examination and consideration of all the evidence in the case you can say that you feel an abiding conviction of the guilt of the defendant and are fully satisfied to a moral certainty of the truth of the charge made against him, then you are satisfied beyond a reasonable doubt.” Two objections are urged against the above instruction, first, that the opening sentence incorrectly states the law. True, the accused had the right to the benefit of any doubt arising from the want of evidence in the case. This was not taken from him in the instruction quoted. The court did not say that a reasonable doubt, to authorize an acquittal, must be one arising from the evidence alone, but merely told the jury that to produce an acquittal it must be a reasonable doubt arising from a candid and impartial investigation of all the evidence in the case. If the jury did that, it would reveal to them any lack of evidence to sustain a conviction, and if any such want of evidence was found there could be no conviction. The other criticism is upon the language: “You are not at liberty to disbelieve as jurors if from all the evidence you believe as men. Your oath imposes on you no obligation to doubt where no doubt would exist if no oath had been administered.” An expression almost in the foregoing language was approved in the celebrated case of Spies v. People, 122 Ill. 1, and Nevling v. Commonwealth, 98 Pa. St. 322, and by this court in at least two cases, Willis v. State, 43.Neb. 102, and Davis v. State, 51 Neb. 301. With those decisions we are content. A discussion of the subject knew would be profitless.

The court declined to give the second instruction requested by the accused, which is as follows: “You are instructed that the law presumes the defendant innocent in this case and not guilty as charged in the information. This presumption of innocence is not a mere form, which may be disregarded by the jury at pleasure, but it is an essential, substantial part of the law of the land binding on you as jurors in this case. You are to regard this presumption of innocence in this case as a matter .of evidence in favor of the defendant, to the benefit of Avhich lie is entitled during your entire deliberations.” The request is in accord with the holding in Long v. State, 23 Neb. 33, where it was stated, following Garrison v. People, 6 Neb. 285, that the legal presumption of innocence was a matter of evidence to the benefit of which the accused was entitled. The same principle embraced in this request was laid down in the sixth instruction given in the case at bar by the court on its own motion, which reads thus: “The law raises no presumption against the defendant; on the contrary, the presumption of law is in favor of his innocence. This presumption of innocence continues through the trial until every material allegation in the information is established by the evidence to the exclusion ■ of all reasonable doubt.” (Garrison v. People, supra) The instruction in that case to which the defendant took exception read: “And if after you shall have carefully examined the evidence in this case, you shall be able to reconcile it with the innocence of the prisoner, it will be your duty, as no doubt it will be your pleasure, to acquit him.” This court held that the language quoted fully recognized the rule that the legal presumption of innocence is a matter of evidence. The twenty-first instruction in the case at hand is no less favorable to the accused than the one requested by him; hénce he was not injuriously affected by the refusal to give the instruction tendered.

Defendants tenth instruction was framed upon the theory that to constitute embezzlement the accused must have obtained the actual physical possession of the money misappropriated. The fallacy of this proposition has already been shown.

The fourteenth and fifteenth instructions refused were to the effect that the auditor’s warrant introduced in evidence was a valid instrument and that the defendant could not be convicted of the crime of embezzlement of the money used in payment of such warrant. This doctrine being opposed to’the views we have expressed upon another question in the case, the requests were properly refused by the trial court.

It was not error to refuse the other requests of the defendant to charge, since, in so far as they stated the law correctly, they were fully covered by the instructions given. This rule that it is not error to refuse to repeat instructions has been so frequently stated by this court as to make unnecessary the citation of the authority to sustain the proposition.

It is finally insisted that the jury did not ascertain and state in their verdict the value of the money embezzled, and, therefore, the finding was insufficient upon which to base the judgment and sentence. . Section 488 of the Code of Criminal Procedure declares: “When the indictment charges an offense against the property of another by larceny, embezzlement, or obtaining under false pretenses, the jury, on conviction, shall ascertain and declare in their verdict the value of the property stolen, embezzled, or falsely, obtained.” The foregoing provision makes it mandatory upon the jury, in case of conviction of either of the offenses named in the section, that they fix and return in their verdict the value of the property stolen, embezzled, or falsely obtained. (McCoy v. State, 22 Neb. 418; McCormick v. State, 42 Neb. 866; Fisher v. State, 52 Neb. 531.) The jury in the case at bar, after finding the defendant guilty as charged in the third count of the information, did ascertain and declare “the amount embezzled to be $15188.445,” which was a substantial compliance with the requirements of the statute. The meaning of the verdict returned cannot be misunderstood. The accused was convicted upon the charge of embezzling a specified sum of money, and the finding by the jury of the amount embezzled is equivalent to an ascertainment of its value. The words “amount” and “value” when applied to money are synonymous terms. Therefore, when the jury determined the amount of money embezzled, they also ascertained its value.

In Grant v. State, 55 Ala. 201, it was ruled that in a prosecution for the embezzlement*of money no averment or proof as to the value thereof is necessary, since the court will take judicial notice tliat tlie same is worth its face Aralue. To the same effect are Duvall v. State, 63 Ala. 12; Gudy v. State, 83 Ala. 51; State v. Barr, 38 Atl. Rep. [N. J.] 817.

In Hildreth v. People, 32 Ill. 36, the defendant was prosecuted for larceny of $1,270 in current bank bills. The jury returned the folloAving verdict: “We, the jury, find the defendant guilty of larceny, of twelve hundred and seventy dollars, as charged in the indictment.” It was there argued, as here, that the verdict was defective, because the value of the money was not ascertained by the jury. The court, in the opinion, say: “It is true the verdict does not, in terms, find the value of the money stolen. But it finds that he was guilty of stealing a certain number of dollars, and as dollars indicate a fixed and precise value, the verdict is as certain in that respect as if they had found the worth of the money. The indictment charges that the defendant stole so many dollars in bank bills, and the jury find that he was guilty of the larceny of that number of dollars. This Avas, although not strictly in form, sufficient in substance.”

A question quite analogous to the one under discussion was before the court in State v. Knox, 17 Neb. 683, ay here it Avas decided that a complaint for the embezzlement of $35 of the public moneys Avas sufficient, although it contained no specific allegation of value. The court, in speaking of the contention that an averment of Aralue was indispensable, observed: “This would be necessary if property, or bank bills not a legal tender, had been 'embezzled; but where the allegation is the embezzling of thirty-five dollars in money, the amount designated expresses the value, the presumption being that it was lawful money.” The same principle must control here. Money is the standard or measure of values; therefore, when a specified number of dollars or amount of money is stated or given, that sum is presumed to represent the value thereof. The legal effect of the verdict is the same as if the jury had said they found the value of the money embezzled to be $151,884.45. It is somewhat informal, nevertheless it is sufficient in* substance. An examination of the authorities cited upon this point by counsel for the defendant will show that not one of them can properly be enrolled in support of the proposition that this verdict is not sufficient, since in none of the cases was' either the amount or value of the property ascertained and stated by the jury in their verdict.

We have scrutinized this record, and given the questions thereby presented the most careful investigation at our command, and the conclusion is irresistible that no reversible error is disclosed. The judgment is accordingly

Affirmed.

Irvine and Ragan, CC., expressing no opinion.