Secor v. State

95 N.W. 942, 118 Wis. 621, 1903 Wisc. LEXIS 62

Opinion

Winslow, J.

The errors claimed will be considered in their order as argued.

1. It is said that it was error to allow the filing of the amended information. The ground taken is. that the proceeding by information is purely statutory, and that there is no provision allowing the filing of an amended information, and hence that an information cannot be amended in a material part any more than an indictment can be amended. Allen v. State, 5 Wis. 329. The particular .parts of the amended information which are objected to are the statement that the defendant was the cashier of the Goodrich Transportation Company, charged with the duty of safely keeping its money, checks, and drafts, and the statement that he did receive and take into his -possession the moneys charged to have been embezzled. It may be a matter of considerable doubt whether the point has not been effectually waived. While the defendant objected to the - filing of the amended information, he reserved no exception to the ruling -of the court, and pleaded “Not guilty” to the new information. It has long been the rule of this court that timely exception must be taken to the rulings of the court in criminal as well as in civil cases, or the objection will be deemed waived. In re Roszcynialla, 99 Wis. 534, 75 N. W. 167. However, as the defendant moved to quash' the amended information at the opening of the trial, we have concluded to consider the question on the merits. Criminal prosecutions at common law were either by information of the prosecuting officer, or by indictment of á grand jury. In general terms, it may be said that prosecution by information was permissible in misdemeanors, but that felonies could only be prosecuted by indictment. While, as a general rule, indictments could not be amended by the court in matters of substance, it was well settled that informations could be amended, or an entirely new information filed, by leave of the court. This distinction was based simply on the fact that the prosecuting officer, unlike the grand jury, was always present in court. 1 Bishop, New Crim. Proc. § 714; 1 Ency. Pl. & Pr. 696-698; Long v. People, 135 Ill. 435, 25 N. E. 851. Our constitution, as originally adopted, provided that .“no person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury.” Sec. 8, art. I, Const. This clause.was, however, amended in 1870 so as to read, “No person shall be held to answer for a criminal offense without due process of law;” and by ch. 137, Laws of 1871 (the provisions of which are now preserved in our statutes), all crimes can be prosecuted by information. This law has been held constitutional. Rowan v. State, 30 Wis. 129. While the legislature prescribed the form of the information, and! made numerous regulations as to the manner of its use, it cannot be reasonably held that they thereby destroyed its well-settled characteristics at common law, any further than such regulations necessarily had that effect. It'was amendable at common law, and the mere fact that its. use was extended so as to include other offenses not formerly included within its scope furnishes no reason for holding that this power of amendment was intended to be taken away. The rules applicable to amendments to indictments are not enforced against amendments to informations. Jackson v. State, 91 Wis. 253-261, 64 N. W. 838. The prosecuting' officer is present in court. He may file an information for any offense which the preliminary examination shows to have been committed, whether it be the offense charged before the examining magistrate or not. If it be ascertained before trial that the information so filed be defective or does not charge the proper offense, no good reason occurs to us now why the prosecuting officer may not, with the consent of the court, amend the information, or substitute a new one; due care being taken tbat tbe accused is not taken by surprise, or otherwise deprived of any substantial right. Doubtless where, as here, an amended information is filed, it -must be considered as superseding and taking the place of the original information.

At the close of the state’s case the defendant moved for the direction of a verdict of not guilty, for failure of proof in several particulars, among which was that it was not shown that the money embezzled was “good and lawful money of the United States,” as charged in both counts of the information. The motion was overruled, and exception taken. After the defense had entered on its case, the district attorney moved to amend the information by striking out the words “good and lawful money of the United States,” in both counts, so as to conform to the proofs in the case; there having been no proof as to the exact character of the money alleged to have been embezzled. This amendment was allowed against objection, and exception was duly taken to the ruling. We are clearly of the opinion that this amendment was rightly allowed, under the terms of sec. 4703, Stats. 1898, which allows amendments in case of variance between the statement in the indictment or information and the proof “in the name or' description of any person, place, or premises, or of any thing, writing or record or the ownership of any property described in the indictment or information.” The money embezzled is unquestionably a “thing” described in the information, and our statute (sec. 4666, Stats. 1898) specifically allows any kind of money embezzled to be described simply as money, without designating its particular species.

2. The second contention made is that the corpus delicti was not proven by any evidence, save extrajudicial confessions, and that this latter class of evidence is insufficient, when standing alone, to establish the corpus delicti. Whether this last-named legal proposition be correct or not, we find it unnecessary to determine, because we find ample evidence outside of the confessions to prove the body of the crime. The information in this case was framed under sec. 4667, Stats. 1898, which provides that, in any prosecution for embezzlement, it is sufficient to allege generally in the indictment or information “an embezzlement of money to a certain amount or of property to a certain value, without specifying any particulars of any such embezzlement, and on the trial evidence may be given of any such embezzlement committed within six months after the time stated in the indictment or information ; and it shall be sufficient to maintain the charge . . . and shall not be deemed a variance if it shall be proved that any money or property of whatever amount, was fraudulently embezzled by the defendant within the said period of six months.” The evidence produced.by the state showed that the business of the Goodrich Company consisted of the transportation of passengers and freight upon Lake Michigan, and the business of the Milwaukee office aggregated many thousands of dollars during the year. Secor was the cashier of the Milwaukee office, and, as such, was charged with the collection and deposit in bank of the amounts received from freights and ticket sales at Milwaukee during the year 1899, and for some time previous thereto. He was also charged with the duty of keeping practically all the books at the Milwaukee office, and did so, with the assistance, to some extent, of other employees. These books were all introduced in evidence, and it ajopeared from the examination of expert witnesses who had carefully examined them that these books showed a shortage in 8ecorJs accounts of more than $8,000 during the six months from January 8 to July 3, 1899, and of more than $9,00Q from July 3, 1899, to January 2, 1900. The evidence tended to show that monthly balances were taken, and that the shortage was concealed by the defendant by a system of throwing forward receipts which came in at the end of the month into the next month’s account, and entering expenses paid during the early days of one month among the expenses of the previous month. The receipts consisted of cash, checks, and drafts, and no attempt was made to specify the particular amount of each; nor was it attempted to show that Secor embezzled or converted any specified item of money at any definite time. There was evidence, also, that Secor made false trial balances in October and November, 1899, in response to a demand from the central office, at Chicago, and that at one time during the year he borrowed money to pay a shortage in his accounts, which he said he had lost by speculation, and again that after he left the employ of the company he went to New York, and was there found living under an assumed name. All of these circumstances are certainly incriminating, and we have been unable to see hoik it can be said that they do not furnish proof of the body of the crime, if it be a fact that embezzlement can be shown under see. 4667, supra, without proving the conversion of a specific item. Here, however, we are met with the claim that the section in question does not mean that proof of a general shortage is sufficient, but that the embezzlement of a particular sum or item must be shown, and that any other construction would render the section unconstitutional, because the defendant would not be apprised of the exact offense with which he is charged. The statute in question came from Massachusetts, where it was first adopted many years ago. Comm. v. Wyman, 8 Metc. 247. It was adopted by Michigan, and afterwards by Wisconsin and Minnesota. Its purpose, plainly, was to relieve the prosecution from some of the difficulties which necessarily were present under the former strict rules of allegation and proof in embezzlement cases, where a trusted agent had carried on his criminal operations for a long period of time. It is very aptly said in the case of State v. Holmes, 65 Minn. 230, 68 N. W. 11:

“Embezzlement in such cases very often consists of a series of acts running through a considerable period of time. These separate acts and the amount and description of the property misappropriated at any one time may not be susceptible of direct proof, while tbe aggregate result is. Tbe body of the crime consists of this series of acts done by virtue of the fiduciary relation between the employer and the employee, all of which virtually constitute a continuing breach of trust. Prior to this statute, conviction was often difficult, if not impossible. . . . The statute was enacted to avoid these difficulties, first, by authorizing this general form of indictment; second, by permitting this liberality of proof as to the description of the property; and, third, by permitting a conviction of the aggregate amount embezzled by a series of acts from the same employer.”

It was also said by the supreme court of Michigan in People v. Hanaw, 107 Mich. 337, 65 N. W. 231:

“We think, however, that it is within the power of the legislature to prescribe the form of indictments, keeping in view the constitutional right asserted in this case [i. e., the right of the defendant to be apprised of the charge against him] ; and where, as in a case of embezzlement, a defendant has a right to have the charge made certain by examination or by a bill of particulars, it cannot be said that he is not informed of the nature of the charge.”

We adopt the views expressed in these two cases.

3. But it is said by the defendant that the court refused his request for a bill of particulars, and that this refusal constituted error. Undoubtedly, as said in the case last cited, the defendant has a right to have the charge against him made certain. The usual way of doing this would be by the furnishing of a bill of particulars; hence the court will generally order such a bill to be furnished, in an embezzlement case, where the indictment is a general one, framed under the provisions of sec. 4661, supra. But the refusal to furnish such a bill is not necessarily error, provided the information which the bill would contain has been otherwise furnished. In the present case it appears that there was preliminary examination held, at which the expert who examined the books submitted statements or schedules showing the condition of the books and the shortage appearing therefrom, and that, a copy of these schedules was then furnished to the defendant, and that defendant had access to all of the books, and examined them and made memoranda therefrom before the trial. These schedules were also introduced in evidence on the trial of the case in connection with the testimony of the expert. Thus it appears that the prosecution confined itself upon the trial to the same claims as those made upon the preliminary examination, and that the defendant was fully informed of such claims upon the examination. Such being the ease, it was not error to refuse the demand for a bill of particulars. People v. McKinney, 10 Mich. 54.

4. At the close of the evidence for the prosecution the state offered a number of books which were kept in the Milwaukee office in connection with the business, called “Freight Be-ceived Books,” “Prepaid Beceipts,” “Advance Charges,” and “Billhooks,” which were not in the handwriting of the defendant, and the admission of these books is new assigned as error. No objection was made to the introduction of these books at the time they were offered and received, but after the state had rested, and the case was with the defendant, he made a motion to strike out the books as hearsay. As we have before seen, timely exceptions must be reserved to rulings of the court in a criminal case as well as in a civil case; and we are inclined to the opinion that the defendant has waived any objection he might have to the introduction of these books by failing to object to them at the time they were offered, especially in view of the fact that he was fully apprised of their nature and contents, and does not even claim any surprise or inadvertence as a reason for his failure to object. But even if the point be considered as properly raised by the motion to strike out, we find no error in the reception of the books. The defendant was the bookkeeper of the company at the Milwaukee office and charged with the general super-wision of all the books kept in the business at that office. The books in question were a part of the books for the keeping of which the defendant was responsible, although the entries-themselves may have been made by subordinate employees. It doubtless was his duty to see that they were properly kept,, and we think they were admissible in evidence, not as conclusive evidence, but as books kept under the defendant’s supervision and general control, of whose correctness he should, in the performance of his duty, have knowledge. People v. McKinney, supra.

5. -The claim that the evidence fails to show the conversion or embezzlement of money cannot be sustained. There was-ample evidence that the amount embezzled was money. It is-true that the evidence showed that checks, drafts, money orders, and express orders were received in payment of’ freights as well as money; but all the receipts were entered on the books, either by the defendant or his subordinates, as money, and thus the books make a prima, facie case of the embezzlement of money. The bank account was absolutely correct. So there could have been no embezzlement through the bank. There was evidence of a number of confessions made by the defendant to different persons, in all of which he spoke of his embezzlement as an embezzlement of money which he lost in speculation. Considering the difficulties which surround the prosecution in a case of this kind, running through a long period of time, we think that the proof was ample to show that the amount taken was in money.

6. Error is claimed by reason of certain instructions given by the court. At the opening of his charge the court made-some general remarks on the nature and gravity of the offensé charged, as follows: ,

“The offense charged in the information is a grave one, as it involves the criminal betrayal and breach of trust, reposed' in a trusted employee. The entire property of a corporation: must of necessity be intrusted to, and its business carried on- by, its employees, for, whether we call them officers, agents, servants, or by some other name, they are nevertheless its employees. And to a large extent the property and business of individuals must be intrusted to employees, such as clerks, cashiers, and the like; and it is a matter of great importance that all employees who-, by virtue of some special confidence yeposed in them, are intrusted with their employers’ money or property, should faithfully care for and honestly account for whatever is committed to their care, custody, or possession. Both corporations and individuals can protect their property from strangers by bolts and bars and iron doors, but not so with trusted employees. The crime of embezzlement involves not- only the fraudulent conversion of an employer’s money, but also a wrongful betrayal of the trust and confidence reposed by the employer in the employee. The case is also an important one on the part of the defendant, because it involves his personal liberty and his reputation'and character. Important to the state especially, perhaps, as it is charged with the grave duty of apprehending and convicting and punishing those who do commit criminal offense, it is equally important to the .defendant, because, as I have already suggested, if you should convict him it would take away his personal liberty for a time. I therefore ask your careful and close attention to such instructions as I shall give to you, by which you are to be guided in considering the evidence and arriving at your verdict.”

It is seriously urged that these general instructions, or at least some parts of them, are erroneous, because they amount practically to an argument in favor of the state, and tend to neutralize all subsequent instructions as to presumption of innocence and reasonable doubt. We have been unable to see the force of these criticisms. To our minds, the sentences quoted are entirely proper for the purpose of impressing on the jury the gravity of the crime, and the importance both to the state and the defendant of a careful consideration, of the evidence and the instructions.

Upon the subject of reasonable doubt, the court, after hav ing charged tbe jury that tbe defendant was presumed innocent until tbe evidence satisfied them beyond a reasonable doubt of bis guilt, said:

“By ‘reasonable doubt’ I mean a doubt of guilt for which a reason can be given, arising out of the evidence.”

Later in the charge the court charged as follows:

“As already said, you must bear in mind all through your deliberations the presumption of innocence hereinbefore explained, and that such presumption must prevail unless you are satisfied from the evidence, under the court’s instructions, that the defendant is guilty, beyond a reasonable doubt. I have already told you that a reasonable doubt is a doubt of guilt for which a reason can be given, arising out of the evidence. You are not to go outside of the evidence to hunt pp doubts, nor should you entertain a doubt that is merely fanciful, speculative, or chimerical, or which is based only upon unreasonable or groundless conjecture. A doubt which ignores a reasonable construction of the whole evidence is not a reasonable doubt. Guilt is proven beyond a reasonable doubt when all the evidence in the case, clearly, impartially, and' rationally considered, is sufficient "to impress the judgment of ordinary reasonable and prudent men with a conviction upon which they would act without hesitation in their own gravest and most important affairs of life.”

It is said that this charge falls within the criticism made by this court of a charge on the subject of reasonable doubt in the case of McAllister v. State, 112 Wis. 496, 88 N. W. 212, to the effect that it assumes that the jury are to start with the assumption that conviction is to be the result unless a reasonable, doubt is proven. We do not think that such is its effect, or that it could be reasonably so understood. The jury were twice told in this very connection that the presumption of innocence attended the defendant all through the trial, and must prevail unless the evidence satisfied them of the defendant’s guilt beyond a reasonable doubt. The definition of “reasonable doubt” given is fairly equivalent to the instructions approved in Frank v. State, 94 Wis. 211, 68 N. W. 657, and Emery v. State, 101 Wis. 627, 78 N. W. 145.

It appears by the record that the jury returned into court twice for further instructions. Before they retired the second time, the court charged them generally as follows:

“I desire to instruct you a little farther as to the duties in the matter of an agreement in this case, as it has taken considerable time; it has cost, of course, considerable money; and it is important and desirable that, if you can come to an agreement, that yon should do so; and I will read to you what our supreme court has said in this regard, to the end that it may guide you in your further considerations. In a case that was tried before Judge BakdeeN, now on the supreme bench, after the jury had been out some time and failed to'agree they were brought into court, and informed by the court, in effect, that they ought not to stand out in an unruly and obstinate way, but should reason together, and talk over the existing differences, if any, and harmonize the same, if possible; that it was their duty to meet the testimony in a spirit of faú*ness and candor with each other, and not stand back obstinately, but to reason together, and to apply the law as given by the court to the facts in the case, and arrive at a verdict. And Justice Cassoday approves that instruction as a proper instruction to the jury. So, also, in another ease, the instruction was given, and approved by the court. It is the duty of each juryman, while the jury are deliberating upon their verdict, to give careful consideration to the views his fellow jurymen may have to present upon the testimony in the case. He should not shut his ears, and stubbornly stand upon the position he first takes, regardless of what may be said by other jurymen. It should be the object of all of you to arrive at a common conclusion. To that end, you should deliberate together with calmness. You may retire again, and see if you can agree upon a verdict. If you become convinced that you cannot, then you will so notify the officer,, and he will let me know.”

To this was added the statement:

' “Of course, each juror should be convinced beyond a reasonable doubt, as I have already instructed you; and I trust that you will now calmly deliberate, and see whether or not you can or cannot agree upon a verdict.”'

It is said that these remarks were so far threatening or coercive as to come within the criticism made by this court in the case of Hodges v. O’Brien, 113 Wis. 97-106, 88 N. W. 901. It would have been better, had the question of expense and the reference to the justices of this court been omitted, but we are not ready to say that prejudicial error results therefrom. In other respects the instructions are unexceptionable.

When the jury finally returned into court with a verdict in writing, it was passed to the court, and the following colloquy took place:

“Court: This verdict I cannot receive. It is not proper in form. You mean all right, but there are two counts, and you remember that I instructed you that you must find him guilty or not guilty of the first count, and guilty or not guilty of the second count. Each count must be found separately by itself. I will have to send you back to correct your verdict in that particular. You may amend it, if you desire. District Attorney: I think the instruction was that they might set the amount, if they did not find the amount charged in the information. Court: What I stated to you was that you might say: ‘We, the jury impaneled to try the issue herein, find the defendant guilty as charged in the first count of the information, and that the value of the money embezzled exceeds a certain amount,’ which you will insert, say, exceeding $100 or $500, or any other sum that you agree on. I will fix the verdict so that you will have no trouble. You can put a specific amount that you want to, or you can put down, say, exceeds a certain amount.”

The jury then retired, and later returned into court with a verdict by which they found the defendant guilty under the first count of embezzling a sum exceeding $600, and on the second count of embezzling a sum exceeding $100. Just what the difficulty was with the original verdict does not appear, but it would seem from the remarks of the court that the jury had failed to find a separate verdict as to each count. If the verdict was informal or incomplete, it was subject to correction at any time before tbe jury was discharged from the case. Indeed, it was the plain duty of the court to see that opportunity was given the jury to return a perfect ver-diet, so that justice might not miscarry. We have been unable to see that the court trenched upon the province of the .jury. On the other hand, the presiding judge seems to have been careful to leave all questions of fact to the jury. We have found no error in the procedure followed by the court.

7. A number of instructions were asked by the defendant and refused. It is a matter of -some doubt whether proper exceptions were taken, under the recent ruling in Gehl v. Milwaukee P. Co. 116 Wis. 263, 93 N. W. 26. The record' affirmatively sho,ws that they were not taken until after the jury had returned into court with the original verdict, but whether they were taken before the corrected verdict was re-lumed is left in uncertainty. Even if it be considered that proper exceptions were taken, it does not seem necessary to discuss the questions raised in detail. The more important of them have already been disposed of in this opinion in the discussion of other exceptions. So far as correct and applicable, the instructions requested were fairly covered by the charge of the court. It is proper to note that the rule announced in Gehl v. Milwaukee P. Co. supra, has now been -changed by ch. 268, Laws of 1903, so that exceptions to refusals to charge may be taken at any time before the close of the trial term. This law, however, has no application to the present case, as the trial took place before its passage.

Upon the whole record, we have found no prejudicial error.

By the Court. — Judgment affirmed.