Richburger v. State

44 So. 772, 90 Miss. 806

Opinion

Thompson,

* Special Judge,

delivered the opinion of the court.

The appellant, George Eichburger, was indicted, tried, and convicted of embezzlement, sentenced to the penitentiary for two years, and appealed to this court. The indictment against him is predicated of Ann. Code 1892, § 1058 (Code 1906, § 1136), and the specific charge was “that he, in the first district of Coahoma county, on the 23d of April, 1906, then and there being the cashier of the Jonestown Bank, a corporation chartered under the laws of the state of Mississippi, did then and there, by virtue of his employment as such cashier, have under his care, of the property of the Jonestown Bank, $8,659.59 in money, which had come into his possession and had been intrusted to his care and keeping by virtue of his said employment as such cashier, and did afterwards then and there, without the consent of said Jonestown .Bank? willfully, unlawfully, fraudulently, and feloniously embezzle the same and fraudulently and feloniously converted the same to his own use.”

The indictment charged a statutory offense, and the language of the statute of which it is predicated is sufficiently specific to give notice of the acts made unlawful and sufficiently exclusive to prevent its application to other acts. The case, therefore, belongs to that class in which it is sufficient to charge the offense by using only the words of the statute (Jesse v. State, 28 Miss., 100; Sullivan v. State, 67 Miss., 346, 7 South., 275) ; and the sufficiency of the indictment must be determined in the light of the well-established rule which justifies, in charging statutory offenses, the use of words synonymous with those used in the statute defining the crime. Harrington v. State, 54 Miss., 490; Roberts v. State, 55 Miss., 421. The indictment under consideration, in so far as its validity was brought in question in the trial court, conforms to the statute in every material particular, using its exact or synonymous words, and the court below did not err in overruling the demurrer to it. The cause of demurrer which sought to draw a distinction between a charge of having money in one’s care and having it in one’s possession is answered by the statute itself (Ann. Code 1892, § 1058; Code 1906, § 1136), making it a crime for any agent, clerk, officer, etc., to embezzle money wbicb shall have come to his “care or possession.” A charge, as distinctly made in this case, that defendant had the money under his care, is sufficient, as would be a charge that he had the same in his possession.

It is unnecessary under our statutes (Ann. Code 1892, § 1364; Code 1906, § 1436), the charge being that defendant embezzled a designated sum of money, for the indictment to aver the value of the money. The charge that the defendant had embezzled $8,659.59 by its very terms fixes the amount of money charged to have been embezzled; and the words, “amount” and “value,” when, applied to money, are synonymous. State v. Kruttschnitt, 4 Nev., 212; Bartley v. State, 53 Neb., 362, 73 N. W., 744; State v. Knox, 17 Neb., 683, 24 N. W., 382; Gady v. State, 83 Ala., 51, 3 South., 429; State v. Barr, 61 N. J. Law, 131, 38 Atl., 817; Grant v. State, 55 Ala., 201; Duvall v. State, 63 Ala., 12. In State v. Stinson, 24 N. J. Law, 9, decided in 1853, the following rules were laid down by the highest appellate court of that state touching indictments for embezzlement; the case before the court being an indictment, as here, against the cashier of a bank for embezzling its funds: (1) Where the larceny, embezzlement, or criminal conversion of any article, whether coin or security or chattel, is charged, the article should be described with reasonable certainty. (2) The value of the article should be stated, unless it be a coin of the government, in which case, the value being established by law, the courts will take notice of the value. (3) The term “dollars” is an expression of value, as well as the name of a coin, and hence the word “dollars” is uncertain as a description, since it may be used to denote a number of cents or dimes, as well as dollars proper, but is certain as an expression of value. These rules have been changed to some extent in this state, so far as concerns the larceny or embezzlement of money, by Ann. Code 1892, § 1364 (Code 1906, § 1436), making it sufficient to describe the property in general terms as money, but are ample authority for the conclusion that the indictment in this case is not defective for failure to aver the value of the money. The case of Merrill v. State, 45 Miss., 651, is not at variance with our conclusion.

The other causes of demurrer assigned are sufficiently answered by what has already been said, and we need not make special reference to them, further than to say that it is unnecessary for the indictment to charge from whom the money under defendant’s care, and which he is charged to have afterwards embezzled, was received. The statute does not so require.

An objection to the indictment, most strenuously argued in this court, is predicated of the fact that it fails to show that the appellant, in the language of the statute, was a director, agent, clerk, servant, or officer of any incorporated company, the charge being that he was the cashier of the bank; but we are precluded, the objection not being jurisdictional in its nature, from deciding the point, not made in the court below, but presented for the first time in this court, by Ann. Code 1892, § 4370 (Code 1906, § 4936), providing that a judgment in a criminal case shall not be reversed because of any error or omission, in the case in the court below, except where the error or omission is jurisdictional in character, if it were not made ground of special exception in that court.

When the cause came on for trial in the court below, the defendant asked for a continuance because of the absence of one Nachman, who was without the state and had not been subpoenaed. He had been appointed by the chancery court receiver of the Jonestown Bank, whose money was charged to have been embezzled, but had resigned the receivership and surrendered to his successor the records, papers, and documents belonging to the bank which had come to his hands. The court below disallowed the application for a continuance, but required the state to admit that Nachman would testify as appellant claimed he would do, were he present. This was quite as much as defendant had a right to demand. The affidavit upon which the continuance was asked was insufficient. It was in its nature largely an application for delay, to give defendant opportunity to make search for evidence not known to exist, and as such it deserved to be denied. Hemingway v. State, 68 Miss., 371, 8 South., 317. Nachman’s presence seems to have been desired quite as .much to ascertain if he knew anything as to prove any specific fact by him. It was not claimed that he had in his custody any paper or record which ever belonged to the bank, or which would throw any light whatever on the issue to be tried. The- utmost showing on this point amounts to a statement that there came to his hands as receiver some papers and records- — just what they were is not shown — which were not at the time of the'trial in the hands of his successor. The statement in the affidavit that “defendant states further that he expects to prove by said witness that prior to the appointment of said receiver he had conveyed to said bank, or caused to be conveyed thereto, for his account, a large amount of valuable real estate and security for any indebtedness which he might owe to said bank last aforesaid — in fact, all that he possessed or owned — and that the said Nachman informed himself of the value thereof, and possessed himself thereof, for and on behalf of the said bank, and that the defendant has never received from said bank any credit therefor, or for any part thereof,” does not aid the application. Assuming that the defendant made the conveyances stated, there is nothing to show but that the deeds and papers, the best evidence, were accessible, and none that the value of the land, presumably located in the county, could not be testified to by other persons whose presence could be obtained. It is to be noted that many of the securities enumerated in the affidavit were really produced on the trial; and in addition it is undoubtedly true, as said by this court in Starling v. State, Ante, 255, 43 South., 952, that, standing at the close of a completed record and looking back on a finished trial, it is manifest that reversible error was not committed by the circuit court in overruling the application for a continuance.

The trial of appellant had proceeded but a short time when the state offered to read in evidence the charter of the bank, to which the defendant objected on the ground that the injured party was named “Jonestown Bank” in the indictment, and the charter offered to be read was that of the “Jonestown Bank of Jonestown.” Thereupon the district attorney asked leave of court to amend the indictment so as to make it read “Jones-town Bank of Jonestown.” The court below, overruling the defendant’s objection to the proposed amendment, granted the request of the state. The district attorney then made an amendment and announced to the court that he had done so, making the indictment read, for the name of the injured party, “ Jonestown Bank, alias Jonestown Bank of Jonestown,” and defendant duly excepted. It does not appear that an order of court allowing the amendment, specifying it precisely, was entered on the minutes, as required by Code 1906, § 1509, but no objection was made in the court below to the amendment on this ground. Had objection been made there, even in the motion for a new trial, the order would no doubt have been entered, as it could have been at any time, nunc pro tunc as of the date when the entry should have been made. The absence from the record of the minute entry cannot, therefore, be considered by this court, because of the Code provision already mentioned, Ann. Code 1892, § 4370; Code 1906, § 4936. The case of Shurley v. State, Ante, 415, 43 South., 299, decided by this court April 1, 1907, cited by appellant, is not at all in point. There the district attorney, without leave of the court, amended the indictment by erasing one name as that of the injured party and by interlineation inserted another, and special exception was taken thereto in the court below.

The variance between the indictment and the charter touching the name of the bank was immaterial, and the amendment, consequently, need not have been made; but, being made, it was harmless, and reversible error cannot be predicated of it. Putnam v. United States, 162 U. S., 687, 16 Sup. Ct., 923, 40 L. Ed., 1118, was a case like this, where an officer of a bank was indicted for embezzling the funds of the bank. There the name of the bank as written in. the indictment was “National Granite State Bank.” Its charter, or real, name was “National Granite State. Bank of Exeter.” There the prosecutor properly treated the variance as immaterial. The defendant was convicted, and upon appeal brought the question before the supreme court of the United States, and that great tribunal, without a dissent on the proposition, said: “It is impossible . . . to suppose that the omission of the words ‘of Exeter’ could have in any way misled the' defendant or failed to convey to his mind what bank was intended to be referred to. It was manifest, therefore, that the omission could not have operated to his prejudice.” In Rogers v. State, 90 Ga., 463, 16 S. E., 205, the defendant was indicted for stealing a bale of cotton from the “Central Bailroad & Banking Company,” and the proof showed that the cotton was stolen from the “Central Bailroad & Banking Company of Georgia.” The supreme court of Georgia, per Lumpkin, J., said: “In point of fact there can scarcely be a doubt that the accused, his counsel, the court, jury, and all others concerned knew perfectly well that the corporation to which the proof related was that to which the indictment referred. . . . Tested by the evidence, the name in the indictment is correct so far as it goes, and only lacks two words of being exactly correct. The result of their omission is simply, we think, -a slight misnomer. ... It cannot be more serious, than á like misnomer in the name of an individual.” The sentences quoted from the two cases last cited are as applicable to the case before us as they were to the causes in which they respectively were uttered. Two other cases of like import will be noted. In State v. Hayes, 78 Mo., 600, an indictment alleging embezzlement of “public moneys belonging to the school fund of North township,” was held to have been sustained by proof of embezzlement of moneys belonging to the “subdistricts of North township.” In State v. Smith, 13 Kan., 274, the accused was charged before the examining magistrate with embezzling $67,000 of the funds of the county of Leavenworth, and in the information afterwards preferred against him by the prosecuting officer he was charged with embezzling $67,378.42 belonging to divers designated funds .in the treasury of the county of Leavenworth. To the information defendant filed a special plea, averring that he had not had a preliminary examination — in that state at that time a necessary prerequisite to a prosecution by information — as to the embezzlement of any money belonging to any other person than the county of Leavenworth, and that he'had not waived his right to such examination. The plea was held bad by the trial court, and the - supreme court of Kansas adjudged that there was no error in the ruling.

Before entering upon the trial, the defendant applied to the court for an order requiring the state to furnish him a bill of particulars, and the court granted the order. The bill of particulars furnished by the state under the order proved unsatisfactory to the defendant, and he made objections to it; .but the court overruled his objections, and this is assigned as error. It was in the discretion of the trial court to grant or deny the application for a bill of particulars; and, in the absence of gross abuse of that discretion, this court will not reverse a conviction because of the action of the lower court upon the subject. 1 Bishop on Criminal Procedure (Ed. 1866), § 286; 3 Ency. Pl. & Pr., 524. Of course, if this court would not reverse for a refusal to order a bill of particulars, it will not do so because of exceptions taken to one which had been rendered. In this case, it may further be said, after the introduction of its testimony in chief, the state was required to elect upon which items of the charges supported by the evidence it would base its demand for a 'conviction, and it elected two items, definitely designated, of the same date, thereby removing all probability of the defendant having been prejudiced by the refusal of the court below to require the bill of particulars to be made more certain. Nor was defendant prejudiced by the fact that the state was allowed 'to elect two items of the charges made by the evidence upon which to press for a conviction, since in respect to the smaller of said items, the one for $12.75, or, as sometimes mentioned in the record, for $22.75, the testimony so far fails that no reasonable person could believe the conviction was based upon it. Its election by the state was necessarily harmless, and the judgment appealed from must stand, if it can be supported at all, upon the sufficiency of the evidence to support a conviction predicated of the other, or $500, item, also elected by the state.

The seventh, eighth, ninth, and fifteenth assignments of error, and the seventh, ninth, twenty-third, and twenty-seventh grounds of the motion for a new trial are each and all predicated of rulings adverse to appellant made in the course of the trial on the admission or rejection of evidence; but there is no specification of the particular rulings complained of in the motion for a new trial, save in the twenty-seventh ground, where the testimony therein referred to is specially designated.

If it be conceded that this court is under duty — by no means true — to search throughout lengthy records like the one in this case, containing a great number of closely and badly typewritten pages, and to detect and decide upon every ruling touching the evidence made by the court below, yet nothing is better settled than that .the circuit court, on the hearing of a motion for a new trial, is under duty to consider only the reasons therefor assigned in writing. Code 1892, § 739; Code 1906, § 801; Barney v. Scherling, 40 Miss., 320; Armstrong v. Whitehead, 81 Miss., 35, 32 South., 917, and the authorities quoted in the opinion in that case. Thompson, in the first volume of his work on Trials (section 709), speaking of motions for new trials, says: “A general complaint that the court erred in admitting illegal, incompetent, and irrelevant evidence, or in refusing to admit legal, proper, and relevant evidence, does not direct the mind of the court to the errors complained of, and • such a motion is properly overruled for that reason alone.” The supreme court of Rhode Island, in Barrows v. Keene, 15 R. I., 484, 8 Atl., 713, speaking of the requisites of an application for a new trial, called there a “petition,” says: “Of course, we do not mean that the petition ought to have reported the testimony in full; for such a report might unnecessarily cumber the files of the court, and might be censurable for another reason, namely, that it might oblige the court to go through a heap of testimony, much of it irrelevant, to find and sort out that which is pertinent. This is a labor which properly belongs to the petitioner’s counsel. A petition like this ought to state the testimony, or its purport, with such fullness as will show the nature of the case, and bring out clearly the points on which the rulings were given or refused, so that the court may see whether any error was committed which calls for correction.” While the Rhode Island practice is different from ours, and while we do not adopt the sentence above quoted in full, we do adjudge it to be altogether improper for counsel to impose upon the courts labor which properly belongs to themselves, and a motion for a new trial on the ground of erroneous rulings in the admission or rejection of evidence should designate each of the particular rulings complained of, and make such specific reference to the evidence as will clearly suffice to draw the mind of the trial judge to the consideration and review of the exact rulings, sought to be questioned; and, if the motion for a new trial fail to do so, this comí will not on appeal reverse because of any ruling on the evidence made by the trial court, since it cannot be known with certainty in such case that the question involved was brought to the attention of the court below in the motion for a new trial.

In Gate City Gaslight Company v. Farley, 95 Ga., 796, 23 S. E., 119, the following grounds in a motion for a new trial were adjudged to be so vague, general, and indefinite as not to indicate the errors alleged to have been committed, viz.: “Because the court erred, in that the court illegally withheld from the jury material evidence against the demand of the defendant.” “Because of the illegal admission of material evidence to the jury against the demand of the defendant.” Contrast with these grounds, condemned by the Georgia supreme court, the following from this record, viz.: “(7) Because the court erred in admitting incompetent evidence for the state over the objections and exceptions by the defendant.” “(9) Because the court erred in excluding competent evidence offered by the defendant.” These grounds for a new trial fall within the condemnation of the Georgia court, and within our condemnation. This court might hunt through the stenographer’s report of the evidence, and find every instance where rulings adverse to the áppellant were made in the progress of the introduction of the evidence; but we cannot by so doing find assurance that any particular ruling was brought into review by the motion for a new trial, and the trial judge thereby given an opportunity to correct the error, if any, made by him. .He did not have the stenographer’s report of the evidence before him. That was filed and made a part of the record many days after the motion for a new trial-had been heard and denied. Many authorities hold that a motion for a new trial, which refers to the evidence as contained in the bill of exceptions or other writing not filed when the motion was acted upon, although filed thereafter, presents no question concerning the evidence, as it is too indefinite. Noble v. Dickson, 48 Ind., 171; McCammack v. McCammack, 86 Ind., 387; Arbuckle v. Biederman, 94 Ind., 168; Harvey v. Huston, 94 Ind., 527; Cain v. Goda, 94 Ind., 555. We cannot tell from this record that the attention of the trial judge was directed on the motion for a new trial to any particular piece of evidence upon which he ruled during the trial, save that specified in the twenty-seventh ground for a new trial. The supreme court of Connecticut in Hoey v. Hoey, 36 Conn., 386, said: “A motion [for a new trial] of itself must show clearly what the error is which is claimed to have been committed by the court, and the court is not bound to help it out by any favorable construction or supposition.” In Rooney v. Grant, 40 Ga., 191, a motion for a new trial was adjudged to have been properly overruled, because it did not assign special grounds upon which a new trial was claimed; and in Cox v. Weems, 64 Ga., 164, a motion for a new trial was adjudged too vague to support an assignment of error.

Proceeding to decide the question presented by the twenty-seventh ground for a new trial, wherein it is distinctly specified that the court erred in permitting two witnesses, Hyman and Longino, to testify as to alleged confessions said to have been made by defendant, we are of the opinion that the statements of defendants testified to by the witnesses were admissions against interest, rather than confessions of crime, and that they were admissible; but, if they be treated as confessions, they were voluntary, and the court below did not err in allowing them to be given in evidence.

The defendant requested a peremptory instruction in his favor, but the court below refused to give it, and this is assigned as error. The appellant claims that it should have been given, because he was indicted for embezzling a designate^ sum of money, and not a general balance of account, or checks, or credits; that the state had elected to demand a conviction upon one or both of two specified transactions, both dated in December, 1905, and that, all the facts testified about each and both of them being admitted to be true, there was nothing to prove or which tended to prove that defendant had embezzled money; that the testimony touching one of these transactions did not tend to show wrongdoing of any kind, and the evidence in respect to the other could only be said to show, or tend to show, a misappropriation to the extent of $500 of a credit due from a bank in Memphis to the Jonestown Bank, and that a misappropriation of a credit is not the same thing as embezzling money. The facts, as the jury were justified in finding, in regard to the transaction upon which appellant’s conviction must be upheld, if at all, are these: The Jonestown Bank, of which defendant was the cashier, was on December 2, 1905, financially in a failing condition, and he knew it was not in a position to make him a loan of $500. TIis account was greatly overdrawn, and he owed the bank so largely that he necessarily knew that, were the bank unembarrassed, a reasonably prudent officer, in the absence of payment of or security for the existing debt, would have refused to make a loan to him. Nevertheless, being in Memphis, Tenn., the defendant on that day drew his check on the Jonestown Bank in favor of the Conaulk Millinery Company for $500, and presumably, since the check was collected, paid the company that much money. The millinery company indorsed the check to the North Memphis Savings Bank, which deposited it, on or before December 5, 1905, in the Bank of Commerce & Trust Company, of Memphis, Tenn. The Bank of Commerce & Trust Company indorsed it for collection to the American Express Company, and that company presented it to the Jonestown Bank on December 8, 1905, and at the same time presented to the bank for collection one or more other checks drawn on it, and which the express company held for collection for the Bank of Commerce & Trust Company. The defendant had returned to Jonestown before his check reached there, and was present in the bank when it with those accompanying it, all aggregating $1,114.58, was presented to the bank for payment. The financial condition of the bank had' not improved between December 2, when appellant’s check was drawn, and December 8, when it was, along with others, presented for payment. The bank did not pay them in money, but gave the American Express Company, appellant executing the same, its check on the Hnion & Planters’ Bank of Memphis, Tenn., for $1,114.58, the aggregate of the several collections, including $500, the amount of defendant’s check to the millinery company, payable to the Bank of Commerce & Trust Company, of Memphis, in whose favor the several collections were to be made by the express company. This $1,114.58 check was presented to the Union & Planters’ Bank of Memphis, where the Jonestown Bank had funds on deposit, and was paid; and $500 of the sum went to the use and benefit of defendant and in satisfaction of his check to the millinery company.

Do the facts stated and the inferences which the jury were justified in drawing therefrom, aside from the question of venue, warrant the conviction of defendant for embezzling money? United States v. Royer, 122 Fed., 844, is a case where the defendant, a clerk in a -branch money order post office of San Francisco, was indicted and charged with having embezzled $1,240.55, lawful money intrusted to his care and keeping as such clerk, a part of the money order funds of the United States. It was shown upon his trial that he had issued to his own creditors a number of post-office money orders aggregating said sum on various post offices in the government, without receiving any money for them, and that these orders had been collected by the payees named ■ in them or their assignees. It was contended for the defendant that the money paid out on the money orders hy other post offices was never “under the care and keeping” of the defendant; that defendant never had or saw the money, and therefore was not guilty of embezzlement. De Haven, District Judge, thought it too clear for argument that funds payable upon money orders drawn by the postmaster or clerk having authority to issue the-same in the regular course of his official duty may be deemed to be intrusted to such postmaster or clerk in the sense that, if wrongfully converted hy him to his own use, he is guilty of the crime of embezzlement; that such funds are in fact subject to his official order — that is, they are set apart by the government for the payment of money orders issued by him, and are thus intrusted to his official care, although they may not be in his official custody. ' The case of Calkins v. State, 18 Ohio St., 366, 98 Am. Dec., 121, is directly in point. The defendant in that case was indicted under a statute which made it an offense for a clerk or servant to embezzle property belonging to any other person, and coming into his possession or under his care by virtue of such employment. The indictment in that case charged the defendant with the embezzlement of wheat belonging to a railroad company by which he was employed as a clerk. It appeared on the trial that the railroad company had a grain elevator in which all grain arriving at Toledo by way of its ro'ad was stored,'and in the transaction of this business an account was kept of each consignment of grain received. This _ account was kept by the defendant, and he was also authorized to issue to the owners or consignees of the grain thus stored a writing called a “grain order,” and to subscribe thereto the name of the general, agent of the company, and upon presentation of such order to issue a shipping order to the holder. The court in that case said: “Such being the duties and powers of Calkins under his employment, the evidence further shows very satisfactorily that while so employed he clandestinely issued fictitious grain orders, caused them to be sold in market, and appropriated the proceeds of the sale to his own use, and that he subsequently issued shipping orders based upon the fictitious grain orders, which resulted in the delivery by the company of the amount of grain named in them to the holders. On this state of proof it was claimed on behalf of the prisoner that the wheat in the warehouse, and alleged to have been embezzled, was not ‘under his care,’ and that no wheat passed from the warehouse into his possession. The court below held otherwise, and this is assigned for error. We are of opinion that the court below did not err in its holding on these points. There is no more reason why courts should allow themselves to be misled by mere names and shadows in the administration of justice in criminal than in civil cases. Calkins, under and by virtue of his employment,' had the wheat in the warehouse of his employers so far under his care and possession and control as to give him the power to make an efficient transfer of title to any part of it to any person who should become the bona fide purchaser of a grain order issued by him in the name of Baldwin, a transfer of title effective in favor of the holder of such order and against his employers. The power was used to divest his employers of their property and to put the proceeds of it into his own pocket. We think he had all the care of the property which the statute contemplates, and that when he clandestinely transferred the title of wheat from the railroad company to an innocent holder of a grain order, and appropriated the proceeds thereof to his own use, the act of embezzlement was complete.” , -

These cases are decidedly pertinent to the question under consideration, and a careful consideration of them leads us to add the approval of this court to the reasoning upon which they are based. The key to them is to be found in the language of the supreme court of Ohio in Calkins v. State, supra, upon which too much emphasis cannot well be put. The court said: “There is no more reason why courts should allow themselves to be misled by mere names and shadows in the administration of justice in criminal than in civil cases.” The federal court ease was, of course, decided in recognition of the fact that every money order post office in the United States upon which the defendant was authorized to issue money orders does not have on hand at all times funds specially set aside with which to pay such orders, since it is a matter of common knowledge that the cashing of money orders, especially at the smaller offices, is occasionally deferred, when first presented for payment, until the incoming of funds with which to take them up. The defendant in that case would have been guilty, had each of the money orders drawn by him been drawn on a post office not having on hand at the time the order was drawn, or when it was presented for payment, one cent with which‘to take it up, if they were paid at any time after they were first presented. The case was correctly decided, not so much because the defendant was authorized to draw upon specific funds belonging to the government as because he constituted the payees, in the money orders his agents • to receive government funds, and enabled them to obtain possession of such funds and to appropriate the same to his benefit, the acquittance of himself from the debts previously due them. The funds, when paid over to the payees on the fraudulent orders issued by defendant, were no more rightfully in their possession than if defendant had furtively reached his arm into the government’s places of deposit in the post offices on which the orders were drawn and had extracted the money and paid it over to the payees, and the funds remained the funds of the government, and the money itself was embezzled by defendant when it was appropriated by the payees, being thereunto authorized by him. The Ohio case is supported by like reasoning.

In the case at bar it makes no difference that the Jonestown Bank did not have a special deposit in the Union & Planters’ Bank of Memphis, set apart only to be used in cashing its drafts, or that its deposit was a general one, creating between them the relation of debtor and creditor. Had defendant drawn the $1,114.58 check (including, as it did, the $500 aforementioned), payable to bearer, or to his order, and had himself gone to Memphis and presented it for payment to the bank upon which it was drawn, that bank would have separated from its funds the necessary sum of money with which to pay it, and would have paid it on the order of the Jonestown Bank; and when defendant so received the money, $500 of it being paid to him, on the facts as established by the verdict, hy reason of his fraud, whose money would the $500 have been? Unquestionably it would have been money which defendant in equity and good conscience should have treated as the money of the Jonestown Bank, and he should have delivered it-to the bank. Bailing to do so, and converting it to his own use, he unquestionably would be guilty of embezzling the money of the Jonestown Bank. It makes no difference that defendant did not himself go to Memphis and personally collect the check of the Jonestown Bank, which he had in part, and to the extent of $500, as found by the jury, fraudulently drawn on the Union & Planters’ Bank. He constituted the payee in that check his agent to collect the money, and the same was collected to the extent of $500 for his benefit and appropriated for his own use. The facts of the case and the legitimate inferences to he drawn from them justified the jury in finding the defendant guilty of embezzling $500 of the bank’s money, and the court below did not err in refusing the peremptory instruction asked hy the defendant.

We are unable to recognize the force of the suggestion made by appellant’s counsel to the-effect that the conviction cannot stand because of deposits made by defendant in the bank at various times, and especially the one for $504 made December 4, 1905, after he had drawn the check for $500 in favor of the millinery company, but before it was taken up at the bank. The deposit, as all others made by him, was made generally, and not as a special one, to be used in paying the check in favor of the millinery company; and in the absence of any showing to the contrary the jury were warranted in treating the rule for the appropriation of payments in civil cases as applicable, and the state of the evidence is such as to. support the finding that defendant did not provide in any way for the payment of the check found to have been fraudulently issued by him.

The question of venue is raised, and defendant’s counsel insist that the statute (Code 1892, § 1330; Code 1906, § 1402), providing that embezzlement may be prosecuted in the county in which the defendant was under obligation to pay over the funds is both inapplicable and unconstitutional. We do not pass upon the questions thus presented, because we think the case is within Code 1892, §§ 1132, 1133 (Code 1906, §§ 1404, 1405) — the first one providing that where an offense is committed out of this state and consummated in it, or where an offense is consummated in this state by means or agency proceeding from a person out of this state, the person so commencing such offense or putting in operation such means or agency, although out of the state at the time such offense was actually .consummated, shall be liable to indictment and punishment therefor, in the county in which the offense was consummated; and the other providing that whére an offense is commenced in this state and consummated out of it, either directly by the accused or by any means or agency procured by or proceeding from him, he may be indicted and tried in the county in which such offense was commenced or from which •such means or agency proceeded. Of course, under these statutes, it is quite immaterial, so far as concerns venue, whether we regard the offense as having been begun in Tennessee and consummated in this state, or 'begun here and consummated there.

Another assignment of error is based upon improper argument to the jury by one of the prosecuting attorneys. It- is the duty of trial judges to give attention to the argument of counsel in every case, especially in criminal cases where the temptation to exceed proper limits seems to be great, and, with or' without objection, to exercise the power in them vested to see that the trial is fair and impartial, and the argument of counsel is a part of the trial. Defendants are often loath to object to argument which they know to be improper, for fear so doing will be misunderstood or misconstrued by the jury; and the trial court should not hesitate, of its own motion, to prevent all abuses of the right to argue a cause to the jury. Right-thinking counsel will welcome a suggestion from the court in the way of admonition that they are dangerously near or over the line which separates the proper from the improper, and will cheerfully conform to the right All others, if there be others, should be made to respect the rights of even the humblest individual, although charged with crime. In this case, however, we cannot consider the assignment of error, because the objection was not made to the improper statements of counsel at the time they were made, or at any time before verdict.

The court below did not commit reversible error either in giving instructions for the state or in refusing or modifying those asked by defendant. Considered as a whole, the instructions were not misleading and they fairly presented the law of the case.

The assignments of error not otherwise mentioned herein are without merit. •

Affirmed.

Whitfield, chief justice, was ill and unable to preside in this cause, whereupon R. H. Thompson, Esq., a member of the supreme court bar, was commissioned by the governor as special judge to preside in his place.