State v. Bickford

147 N.W. 407, 28 N.D. 36, 1913 N.D. LEXIS 32

Opinions

Bruce, J.

(after stating the facts as above). The first assignment of error, or point one, of appellant’s brief, is directed to the action of the court in overruling the demurrer to the information. It is alleged that more than one offense is charged, and that the information therefor violates § 9851, Pev. Codes 1905. The information begins by informing the court “that heretofore, to wit, on the 3d day of January, 1911, in the county of Burleigh, and state of North Dakota, one George L. Bickford, late of said county and state, did commit the crime of embezzlement in the manner following, that is to say: Count one: That at said time and place the defendant, George L. Bickford, was, and ever since on or about the 4th day of January in the year nineteen hundred nine, had continuously been, the duly elected, qualified, and acting; state’s treasurer of the state of North Dakota, and during such period and in his said term of office as such state treasurer of the state of North Dakota, and by virtue of'and in the course of his official duty as such state treasurer, he, said George L. Bickford, collected, received, obtained, and had in his possession and custody and under his control as such state treasurer certain public money, bank notes, checks, drafts, bills of exchange, and valuable securities of the aggregate sum and value of sixty thousand four hundred thirty-eight dollars and eleven cents, and all of which said money, bank notes, checks, drafts, bills of exchange, and valuable securities were then and there the property of the state of North Dakota; and he, the said George L. Bickford, so having in his custody and under his control as such state treasurer, as aforesaid, the piiblic money, bank notes, checks, drafts, bills of exchange, and valuable securities aforesaid, on, to wit, the third day of January, In the year one thousand nine hundred eleven, in the county of Burleigh in the state of North Dakota, did then and there wilfully, fraudulently, and feloniously appropriate and convert the same public money, bank notes, checks, drafts, bills of exchange, and valuable securities to his own use, in violation of his said official trust, and thereby did ■embezzle the same. This contrary to the statute in such cases made .and provided, and against the peace and dignity of the state of North Dakota.”

Count two begins with the words: “And your informant in the name and by the authority of the state of North Dakota further informs this •court: That on, to wit, the third day of January, 1911, in the county •of Burleigh, state of North Dakota, the said defendant, George L. Bickford, did commit the crime of embezzlement in the manner following, that is to say:” Then follows language identical with that of the first count, with the exception that, instead of charging that the said Bickford appropriated and converted the public money, bank notes, checks, etc., “to his own use, in violation of his said official trust, and thereby did embezzle the same,”- it charges that he appropriated and •converted the said moneys, etc., “to the use of the First State Bank of Bowbells,”'etc., “and thereby did then and there feloniously embezzle the said public money, bank notes,” etc.

The third count is the same as the foregoing, except that it charges that the said Bickford did “loan the said public money,” etc., “to the First State Bank of Bowbells,” etc., “and then and there did feloniously embezzle the said public money,” etc.

We are of the opinion that only one offense is charged. It is true that each count is complete in itself. It is, however, also true that the information begins with the general charge of the crime of embezzlement, which it says was committed “in the manner following, that is to say,” and that then the separate counts follow. It is quite clear to us that this general allegation charges the one general crime of embezzlement, and that the several counts are merely various statements of the ways in which the said general crime was committed.

Sec. 9204, Bev. Codes 1905, defines embezzlement as “the fraudulent appropriation of property by a person to whom it has been intrusted.” Sec. 9205 provides: “If any county treasurer or other officer or person charged with the collection, receipt, safe keeping, transfer, or disbursement of public moneys, or securities, or any part thereof belonging to the state or any county, precinct, district, city, town, or school district shall convert to his own use, or to the use of any other person or persons, body corporate, association, or party whatever, m any way whatever, such public moneys or securities, or any portion, thereof, or shall use the same or any portion thereof by way of investment in any kind of securities, stocks, loans, property, land, and merchandise, or in any form whatever not authorized by law, or shall loan the same or any portion thereof with or without interest to any company or corporation, association or individual, or if any person shall advise,, aid, or in any manner knowingly participate in such act, every such act shall be deemed and held in law to be an embezzlement of so much, of said moneys or securities as aforesaid as shall be thus converted, used, invested, loaned, or paid out as aforesaid, and upon conviction thereof, such county treasurer or other officer or person shall be punished by imprisonment in the penitentiary for a term of not less than one-year, nor more than twenty-one years, according to the magnitude of the embezzlement, and also pay a fine equal to double the amount of money or other property so embezzled as aforesaid; which fine shall operate as a judgment at law on all the estate of the party so convicted: and sentenced, and shall be enforced by execution or other process for the use of the state, county, precinct, district, town, city, or school district whose moneys or securities have been so embezzled.” In the-same chapter (chapter 51) are other provisions making a common offense of embezzlement out of fraudulent appropriations by carriers,, trustees, bailees, and clerks or servants. It is true that in § 9205 a-special penalty is provided for in case of fraudulent appropriations by public officers, but in the whole chapter there is but one common crime-of embezzlement, based upon the fundamental act of the “fraudulent appropriation of property by a person to whom it has been intrusted,”' and in § 9205 we find no suggestion of specific crimes, but the general crime of embezzlement committed by the fraudulent misappropriation of public money by conversion to one’s own use, to the use of any other person or persons, body corporate, association or party whatever, in. any way whatever, or the use of such money, etc., in any form whatever not authorized by law. The several counts of the information, in our opinion, do not charge, therefore, the commission of different offenses, but contain merely allegations of various ways by which the same was accomplished; or, to put it in different words, various facts by which the common and necessary fact, that is to say, the substantive crime of embezzlement, was committed. A fraudulent conversion, indeed, is at the foundation of the whole matter and of the whole chapter and of § 9205. Sec. 9205, in fact, denounces and emphasizes as embezzlement: (1) Conversion to the officer’s own use; (2) conversion to the use of any other person or persons, body corporate, association, or party whatever; (3) conversion by using the same, or any portion thereof, by way of investment in any hind of securities, etc., not authorized by law; (4) conversion by using the same in any form whatever not authorized by law; (5) conversion by unlawfully loaning the same with or without interest, etc. And the foundation of all of these different unlawful appropriations is a conversion of the funds in violation of his official trust by the officer, that is to say, a fraudulent appropriation to his own use. In every case there must necessarily be the prior fraudulent appropriation to one’s own use. If, indeed, an officer gives funds to one who is not entitled to receive them, or loans them to one who is not entitled to receive them, he first appropriates them from the lawful channels, exercises an individual control and use over them, and commits the basic offense of a fraudulent appropriation. Sec. 9205, indeed, would mean just the same and would be just as effective if it had simply declared that a public officer who fraudulently converts the public funds intrusted to him shall be guilty of embezzlement and punished as in said section prescribed. Here the gist of the offense is the unlawful appropriation, and the manner of its commission is subsidiary thereto. In the case of Taylor v. People, 12 Hun, 212, the court, in passing upon the sufficiency of an indictment for larceny, said: “Each count in the indictment theoretically describes a different offense, but where it is apparent ‘from the general tenor of the indictment that each count relates to the same transaction,’ and that the introduction of separate counts is not for the purpose of proving distinct offenses, but only for the purpose of meeting possible variances or defects of the evidence to establish some one of the ingredients of the felony as described in a particular count, tben the court can properly exercise a discretion to prevent a failure of justice, and treat the indictment as it is in fact an indictment for one offense.” See also State v. Chapman, 6 Nev. 320; People v. Rice, 35 N. Y. S. R. 185, 13 N. Y. Supp. 161; People v. Rose, 52 Hun, 33, 4 N. Y. Supp. 787. In State v. Malim, 14 Nev. 288, the court said: “Is it not evident from the general frame-work, language and structure of the indictment in the present case, that the same offense was intended to be and is charged in each count? If so, that is all the law requires.” In the case of People v. Rose, 39 N. Y. S. R. 291, 15 N. Y. Supp. 815, the court said: “The fair inference arising from these allegations shows that the offenses alleged related to one and the same transaction, and were intended to charge but one offense; that the pleader, to meet any variance of proof, has made the allegations to that end.” In Bishop’s Criminal Procedure, 2d ed. § 457, we find the following: “The general rule in felony is that the court will permit the prosecution to give evidence of only one felonious transaction, but when it appears, on the opening of the case and during the trial, that there is no more than one criminal prosecution involved, and the joinder of the different counts is meant only to meet the various aspects in which the evidence may present itself, the court will not restrict the prosecuting officer to particular counts, and will suffer a general verdict taken on the whole.” See also M’Gregg v. State, 4 Blackf. 101; Kane v. People, 8 Wend. 203 ; McCollough v. State, 132 Ind. 427, 31 N. E. 1116; Mills v. State, 53 Neb. 263, 75 N. W. 761; State v. Mitton, 37 Mont. 366, 127 Am. St. Rep. 732, 96 Pac. 927.

The same considerations and conclusions apply to the second point, that the verdict does not find the defendant guilty or not guilty, and is indefinite because of the three counts. The verdict was “guilty of embezzlement as charged in the .information.” As we have before said, there was but one offense charged, and that was embezzlement; embezzlement, it is true, by a public officer, but every count contained this allegation. In the case of Mills v. State, 53 Neb. 263, 73 N. W. 761, the statute was identical with § 9205, Rev. Codes 1905. The information was in four counts, and the trial was on two of them; the one alleging embezzlement of $6,000 by conversion to the embezzler’s own use, and the other alleging embezzlement by loaning and converting $6,000 to the use of the defendant, who was charged in both counts as an abettor to the officer. The defendant attacked the proceeding, and claimed that one of the counts charged a different offense from that on which there had been a preliminary hearing. The court, on page 763, said: “In the case at bar the fourth count of the information charged the embezzlement of the same money, of the same party, and at the same time, as did the complaint; the sole difference being the manner or method alleged of the commission of the crime. It was not a charge of a different offense; the allegation of the manner in which the crime was committed was varied,— no doubt, to meet a possible contingency in the evidence. This was allowable.” In the ease of State v. Mitton, supra, there was a prosecution in two counts for forgery; one for forgery proper, and one for uttering the forged instrument, both acts being defined in the same statute as the crime of forgery. There was a demurrer for duplicity. The court said: “Where the statute declares an act unlawful when perpetrated in any one or all of several modes, an indictment may charge the act in separate counts, basing each count upon the different modes specified; and it is held that the indictment may contain, in one count, an enumeration of all the different modes or means by which the crime may be committed.” See also Territory v. Poulier, 8 Mont. 146, 19 Pac. 594. In 1 Bishop on Criminal Procedure, § 457, we find the following: “When it appears . . . that there is no more than one criminal transaction involved, and the joinder of the different counts is meant only to meet the various aspects in which the evidence may present itself, the court will not restrict the prosecuting officer on particular counts, and will suffer a general verdict to be taken on the whole.” In 12 Cyc. 693, we find: “When but one •offense1 is charged in various forms in separate counts of one indictment, a general verdict of guilty, or of guilty as charged, without mentioning the count on which it is based, is sufficient.” See also 12 Cyc. 693, note 25.

Counsel for appellant seems to admit that a plain verdict of guilty would have been sufficient, but claims that the verdict of “guilty of embezzlement as charged in the information” was a nullity. He also, in the same breath, claims that the jury should have specifically found -that the defendant was a public officer, etc. Sec. 10044, Bev. Codes 1905, provides that “a general verdict upon a plea of not guilty is either ‘guilty’ or ‘not guilty,’ -which imports a conviction or acquittal of the offense charged in the information or indictment.” The verdict before us was a general verdict under the statute, with the addition of the words “as charged in the indictment.” If the jury had found the defendant guilty merely, that would have imported a conviction of the offense charged in the information. We are asked to hold that the addition of the very words which the law would presume from the use of the word “guilty” alone renders the verdict invalid. The contention needs merely to be stated in order to be refuted. The word “guilty” alone would have found him guilty of all of the elements of the crime charged, including the fact of being a state officer. That fact cannot be obviated by the additional fact that the jury also found him guilty of the crime of embezzlement with which the information charged him.

It is also claimed that the state voluntarily selected the draft of May 15th, 1909, for $25,215.26, as the subject of the embezzlement charged in the information, and that the state thus voluntarily elected to ask conviction upon this item alone. It is claimed that no attempt'was made to establish the embezzlement by showing that the books called for the production of $60,438.11 more than the cash on hand; that no demand was made upon the defendant for $60,438.11, or any other sum more than the payment of the certificates; and that the following objection should have been sustained: “Defendant objects to the introduction of any evidence tending to establish an embezzlement, or claimed to tend to establish an embezzlement, other than the $25,215.26 item that has been isolated and set apart by the testimony of the witnesses of the state at the present time, it now appearing that this remittance was made at one particular time and was separate and distinct from all other remittances, and that there was no additional remittance made by Mr. TIalvorson, the county treasurer, until at least thirty days thereafter, for his testimony shows that the remittances were made not more often than monthly, and until there is some showing to the court that there is an intent to aggregate several payments to the embezzlement of a gross’ sum, the state should be limited to the particular transaction which by its own volition it has selected as being the subject of the charge contained in the information; the defense insisting that by isolating the $25,000 transaction the state has voluntarily made an election which is just as binding upon the state as though such election and selection had been made in pursuance to an order of the court. That evidence as to all other transactions is incompetent, irrelevant, and immaterial to prove the embezzlement of the $25,000 item, ami an attempt to establish a chain of crimes other than that,_ the one so isolated and selected by the state as the subject of the information and upon which the defendant is upon trial. ... I will make that a little more specific. This relates to an offense other than and distinct from the offense already isolated and selected by the state as the basis of the prosecution; that by the selection of the $25,000 incident, being draft No. 9648j the state has voluntarily made its selection, which is binding upon it; and evidence of other transactions is entirely irrelevant and immaterial to the issue's thus voluntarily made, upon the No. 9648 draft transaction. It is not in the nature of a'continuing offense in any way. They have voluntarily selected one particular incident as being the subject of embezzlement that they have sought to prove under the information. The information does not bind them either as to time or as to amount, but having made the 'selection it is entirely incompetent to show other similar transactions, or other separate and distinct and isolated transactions, for the purpose of cumulating them with the one thus voluntarily selected in order to make up the aggregate charged in the information.” There is no merit in this objection, nor in the accompanying one that the state should have been required to elect between the three counts of the information, and that at any rate the prosecution should have been confined in its proof to the first item of $25,215.26, which was the amount of the first remittance from Barnes county. What the state was developing in its proof was not an isolated embezzlement, but a long-drawn out and intricate scheme. This, under its general charge in the information, it was entitled to do. The reasons for the rule are clearly set forth by the supreme court of Illinois in Ker v. People, 110 Ill. 627, 647, 51 Am. Bep. 706, 4 Am. Crim. Rep. 211, when in its opinion it says: “It is insisted the evidence shows a cumulation of offenses, and for that reason it was error in the court to deny defendant’s motion to compel the prosecution to elect upon what alleged act of larceny or embezzlement a conviction would be asked. The court, by its ruling, submitted all the evidence touching the embezzlement of funds and securities by defendant, to the jury, and it is not perceived how it could properly have done otherwise. Embezzlement is a crime defined by statute, and it was entirely competent for the legislature to declare what acts would constitute the crime, and fix the measure of punishment. One element that enters into the statutory definition of embezzlement is the fiduciary or confidential relation. Such relations afford the amplest opportunity to misappropriate money, funds, and securities, and often present great difficulty in proving exactly when and how it was done. This is especially true with regard to clerks and confidential agents in banks, or other corporations or firms doing a large business, and who are intrusted, in whole or in part, with the care or custody of funds, securities, and property belonging to banks or other corporations, or to a copartnership. It is difficult, in such cases, if at all possible, to prove with certainty when or how the embezzlement was affected. It is, of course, done with a view to avoid detection, and the confidential relations existing ward off suspicion. Embezzlement may, and most often does, consist of many acts done in a series of years, and the fact at last disclosed, that the employer’s money and funds are embezzled, is the crime against which the statute is leveled. In- such cases, should the prosecution be compelled to elect it would claim a conviction for only one of the many acts of the series that constitute the corpus delicti, it would be doubtful if a conviction could be had, under §§ 75 and 76 of the Criminal Code, against a clerk in a bank or other corporation, or a copartnership, although the accused might be conceded to be guilty of embezzling large sums of money in the aggregate. * * * Under this rule, which is certainly a wise one, it was proper the court should permit all the evidence of what defendant did by reason of his confidential relations with the banking firm whose clerk he was, to go to the jury, as was done, and if the jury found, from the whole evidence, any funds or securities for money had been embezzled or fraudulently converted to his own use by defendant, it was sufficient to maintain the charge of embezzlement, as that crime is defined in the 75th and 76th sections of the Criminal Code. Any other rule would render it exceedingly difficult to secure a conviction under either of these sections of the srat ute. The view taken by the defense, of this statute, is too narrow and technical to be adopted. It has a broader meaning, and, when correctly read, it will embrace all wrongful conduct by confidential clerks, agents, or servants, and leave no opportunity for escape from just punishment on mere technical objections not affecting the guilt or innocence of the party accused.”

The crime of embezzlement as known under the codes and in North Dakota is not the common-law offense of larceny. It is not necessary that the specific property appropriated should be identified, and that the prosecution should be based on the specific misappropriation of the aggregate sum charged. Sec. 9211 of the Revised Codes 1905, provides that “a distinct act of taking is not necessary to constitute embezzlement, but any fraudulent appropriation, conversion, or use of property, coming within the above prohibitions, is sufficient.” Sec. 9864 provides: “In an information or indictment for larceny or embezzlement of money, bank notes, certificates of stock, or valuable securities, or for a conspiracy to cheat and defraud a person of any such property, it is sufficient to allege the larceny or embezzlement, or the conspiracy to cheat and defraud, to be of money, bank notes, certificates of stock, or valuable securities, without specifying the coin, number, denomination, or kind, thereof.” Sec. 9204 defines the crime as being “the fraudulent appropriation of property by a person to whom it has been intrusted.” There can be no doubt that under the authorities and under the modern, statutes, the aggregate misappropriation may be treated as one crime and all the peculations as parts of the one offense, and that the aggregate shortage proven may be more or less than the sum stated in the information. It is not necessary even that the exact sum embezzled should be alleged, and it is not necessary to prove the exact sum charged. “In the case at bar,” says the supreme court of Massachusetts, in Com. v. Hussey, 111 Mass. 432, 434, “the evidence that proved the embezzlement proved that the amount and value of the notes embezzled was $10, and not $65. And it' is insisted on the part of the defendant that, as the indictment alleges an excuse for not giving a more specific description of the notes, the amount and value are made a part of the description of the offense and essential to its identity, in the same manner as an unnecessary averment as to the color of a horse alleged to have been stolen becomes a matter of description which must be proved as alleged. In other words, that the grand jury have described the property merely by the amount and value, and that a variance in that respect entitles the defendant to an acquittal. But this objection is in our judgment untenable. The two cases above cited [Com. v. Sawtelle, 11 Cush. 142, and Com. v. Duffy, 11 Cush. 145] make it certain that where the crime is described as it is in this indictment, it is not a material variance to prove the larceny of less than the alleged amount and value. The number stated may be much larger than appears in proof, and yet furnish no ground of objection on account of variance. The amount and value in this indictment do not appear to us to be descriptive of the offense, in such a manner as to fix its identity. The property is described as ‘divers promissory notes, payable to bearer, current as money in this commonwealth.’ No attempt is made to give the number or denominations of the notes, but it was necessary to state that they had a value, in order that they should be subjects of larceny; and in the case of notes current as money, the amount and value would ordinarily be synonymous terms. Except on the ground of variance, the defendant cannot object that less is charged against him than was proved. If proof of less than the amount and value charged is not a variance, it is difficult to see why proof of more should be. If the indictment had contained a more particular description, the proof must have been limited accordingly. But it was not necessary to give a more particular description, for that given was already sufficient to support a judgment; and the allegation that a more particular description was unknown to the grand jurors was therefore an immaterial allegation, and proof that a more particular description was in fact known to them did not create a fatal variance between the indictment and the proof.” And to the same effect are 7 Enc. PL & Pr. 454; 15 Cyc. 526; United States v. Fish, 24 Fed. 585; State v. Ring, 29 Minn. 78, 11 N. W. 233; State v. Lewis, 31 Wash. 75, 71 Pac. 779, 782, 783; and see also Weimer v. People, 186 Ill. 503, 58 N. E. 378, 379; Bolln v. State, 51 Neb. 581, 71 N. W. 444; Brown v. State, 18 Ohio St. 496; Ker v. People, 110 Ill. 646, 51 Am. Rep. 706. 4 Am. Crim. Rep. 211; State v. Reinhart, 26 Or. 466, 38 Pac. 822. 826, 827; Jackson v. State, 76 Ga. 573; State v. Pratt, 98 Mo. 482, 11 ; Carl v. State, 125 Ala. 89, 28 So. 505; Willis v. State, 134 Ala. 429, 33 So. 226; State v. Wise, 186 Mo. 42, 84 S. W. 954; State v. Wissing, 187 Mo. 96, 85 S. W. 557; State, v. Shour, 196 Mo. 202, 95 S. W. 405; Bartley v. State, 55 Neb. 294, 75 N. W. 832; Morse v. Com. 129 Ky. 294, 111 S. W. 714; State v. Moyer, 58 W. Va. 146, 52 S. E. 30, 6 Ann. Cas. 344. There can be little doubt, indeed, that the defendant during his term of office embezzled a-much larger sum than the amount found by the jury. In our opinion, also, the mere fact that there may have been in the cash drawer at the time that the defendant relinquished his office more than sufficient to equal the $54.-65 in no way atones for or expunges the crime. The crime of embezzlement by a public officer does not consist in failing to turn over all moneys due to the state at the time of the relinquishment of office, but in having fraudulently converted money or securities while in that office. The mere fact that a friend may come to one’s rescue, and furnish money sufficient to make good a shortage on the final accounting, does not in any way negative the fact that prior to such final accounting money had been fraudulently converted, that is to say, embezzled. The above consideration and conclusion also apply to the claim that the verdict is a nullity because in it an embezzlement of $54.65 is found to have been committed, when the amount charged in the information is $60,438.11, as well as the point that-there is no proof that the $54.-65 item was ever paid or loaned to the Bowbells bank. We merely desire to add that no matter what may be the case with the second and third counts, the first count says nothing about the Bowbells bank, and contents itself with merely charging the embezzlement of an aggregate sum. It does not specify or itemize the items, nor does it make the sum charged a necessary description of the offense. That proof of the embezzlement of a greater or less sum than that charged is admissible under such a count is well established in the authorities. See Com. v. Hussey, 111 Mass. 432, 434, and cases just above cited.

We next come to the defense that the state depository banks were already filled to their limit with state funds at the time of the defendant’s taking office, and that something had to be done with the money in his possession. It- is claimed that even though the defendant may not have had the right to malee general deposits to these banks, he had the right to make special deposits for the safe keeping of the money and that in any event a mere deposit in a bank is not a loan to such bank or a violation of the statute which makes it an offense to “use the same, or any portion thereof, by way of investment in any kind of securities, stocks, loans, property, land, and merchandise, or in any form whatever not authorized by law, or shall loan the same, or any portion thereof, with or withoxxt interest, to any company or corporation, association or individual.” It is argued with great force, and in spite of its economic falsity the proposition no doubt finds support in many authorities, that a deposit of money in a bank does not constitute a loaning to or conversion thereof to the use of the bank. Whether true or not, however, as a general proposition, the intentioxx is after all controlling. The real question was, did the defendant really loan the money as a special deposit, or did he intend that the bank, in which he was heavily interested, should have the use and benefit thereof. If merely a special deposit, and not a loan or intended for a loan, why did the defendant so sedulously keep the fact from the various bank examiners and from the public at large, and why did he make fictitioxxs entries and fictitious deposits and withdrawals in other banks in order to cover up the matter? It is idle to claim that the deposit in the Bowbells bank was a special deposit. A special deposit is a bailment of certain specified property which can and is to be identified and returned. Thei’e was no pretense even of any such thing in the case at bar. It would appear that on these matters the trial court thoroxxghly and correctly instructed the jury.' He, among other things, said: “You are instructed that the state treasurer has the right to deposit moneys in the bank designated by the state board of auditors as a depository, and it is not necessary that such deposit shall be upon open account. It is sufficient if such deposit is subject to payment on demand, and before you can find a verdict ■ of guilty against the defendant for the embezzlement of any funds so deposited you must be satisfied beyond a reasonable doubt that the defendant deposited such moneys with the intent, at the time of so depositing the same, to fraudxxlently convert same to his own use and benefit, or to the use and benefit of such bank. I charge yoxx as a matter of law that the defendant had the right during the year of 1910 to deposit funds, either by way of special deposit or for safe keeping, in the State Bank of Bowbells; and if such deposit was not made with a fraudulent intent to deprive the state of the use of such moneys, and with specific fraudulent intent to convert the same to his-own use or to the use of such bank, then such deposit would not be illegal, and you must find the defendant not guilty. The law of this state permits the state treasurer to deposit the public moneys in his control in only two forms: First, a deposit; second, a special deposit. A general deposit in a bank is the ordinary form of bank deposit, where the banker is entitled to mingle the money deposited with the other funds of the bank, and use it in the ordinary course of business. A general deposit of state money by the state treasurer can be lawfully made only in those banks which have been designated by the state board of auditors and have qualified as state depositories, and such general deposits cannot rightfully exceed the maximum amount for which the depository bank has qualified as such. A special deposit of money by the state treasurer in a bank is a placing of the money in the bank merely for safe keeping, so that the banker is a mere bailee, and must keep the identical money without mingling it with the other funds of the bank, to be returned in kind to the state treasurer, or such person or persons as he may direct. A special deposit, as before defined,- may be made in any bank, but the banker holding such special deposit cannot lawfully use the money so specially deposited.” It appears to us that these instructions correctly state the law. Under the statute1 all that the defendant could legally do was to make a special deposit of the excess funds. The statutes in regard to the state depositories otherwise would be meaningless, and so would the section of the Penal Code under which the defendant was prosecuted. If deposits in excess of the amount allowed can be made in banks at the will of the treasurer, and loaned out by those banks at will, all of the security aimed at by the law is taken away.

“Deposits made with bankers,” says the supreme court of Alabama, “are either general or special. In the case of a special deposit the bank merely assumes the charge or custody of property, without authority to use it, and the depositor is entitled to receive back the identical money or thing deposited. In such case the right of property re mains in the depositor, and, if the deposit is of money, the bank may not mingle it with its own funds. The relation created is that of bailor and bailee, and not that of creditor and debtor.” Alston v. State, 92 Ala. 124, 13 L.R.A. 659, 9 So. 732. See also 7 Words & Phrases, p. 6574. Koetting v. State, 88 Wis. 502, 60 N. W. 822, 823; Bank of Blackwell v. Dean, 9 Okla. 626, 60 Pac. 226; Officer v. Officer, 120 Iowa, 389, 98 Am. St. Rep. 365, 94 N. W. 947, 948; Catlin v. Savings Bank, 7 Conn. 487, 492; Puffin v. Orange County, 69 N. C. 498, 509; Talladega Ins. Co. v. Landers, 43 Ala. 115, 138; Collins v. State, 33 Fla. 429, 15 So. 214, 217; Keene v. Collier, 1 Met. (Ky.) 415, 417; State v. Carson City Sav. Bank, 17 Nev. 146, 30 Pac. 703, 704; McLain v. Wallace, 103 Ind. 562, 5 N. E. 911, 912; Wright v. Pain, 62 Ala. 340, 343, 34 Am. Rep. 24; First Nat. Bank v. Graham, 100 U. S. 699, 703, 25 L. ed. 750, 751; Pattison v. Syracuse Nat. Bank, 80 N. Y. 82, 90, 36 Am. Pep. 582; National Bank v. Speight, 47 N. Y. 668; Marine Bank v. Fulton County Bank, 2 Wall. 252, 256, 17 L. ed. 785, 787; Mutual Acci. Asso. v. Jacobs, 141 Ill. 261, 16 L.R.A. 516, 33 Am. St. Rep. 302, 31 N. E. 414, 416 (citing Anderson’s Law Dict. 344). The deposits, then, in the case at bar, were not special deposits, and the statute was to that extent violated. The money was put to a use that was not permitted by the law. Paragraph 14 of § 111, Pev. Codes 1905, describes as one of the duties of the state treasurer the duty “to keep all moneys belonging to the state in his own possession until disbursed according to law ” but nothing in the subdivision prohibits him from making special deposits for the safe-heeping of public moneys. Sec. 232 provides: “All funds of the state shall be deposited by the treasurer in one or more designated state or national banks in the state of North Dakota on or before the first day of each month, in the name of this state. Such bank or banks shall be designated by the board of auditors in conjunction with the governor; . . . provided that the amount deposited in any bank shall not exceed 50 per cent of its paid-up capital and surplus.” Sec. 9205 makes it embezzlement for a public officer “to convert to his own use, or to the use of any other person or persons, body corporate, association, or party whatever, in any way whatever, such public moneys or securities, or any portion thereof, by way of investment in ■■any kind of securities, stocks, loans, property, land, and merchandise, or in any form whatever not authorized by law, or shall loan the same, ■or any portion thereof, with or without interest, to any company or corporation, association or individual.” It would seem that a general deposit of $60,000 in excess of the legal limit of a depository bank, ■coupled with a sedulous system of concealment, would sufficiently indicate an intention to violate, and a violation of, the statute in question. The crime of embezzlement, indeed, may be committed’by a fraudulent failure to account for funds, as well as by their physical confiscation. Champion Ice Mfg. & Cold Storage Co. v. American Bonding & T. Co. 115 Ky. 863, 103 Am. St. Rep. 356, 75 S. W. 197, 198. Where, therefore, prior to and in the various examinations of the state bank examiners and the general reports that were required by law to be made to 'the governor, the defendant kept concealed in his private cash drawer the various certificates of deposit, some of which at any rate were made payable to no particular party, as well as the receipt from the Bowbells State Bank, and concealed the making of such deposits and his dealings in relation to the Barnes county remittance by means of fraudulent entries, he to all intents and purposes, and in the eye of the law, embezzled the money, and the jury was justified in ®o holding. The same is true of the $54.65. He made no record of its receipt. He obtained it as part of a fraudulent transaction, and the jury was perfectly justified in holding that it had been embezzled. These facts, at any rate, the state’s evidence tended to show, and the •conclusion to be drawn therefrom was for the jury and not the court, to make.

There is much to be said in support of the proposition that the mere making of a general deposit in excess of the amount allowed by the statute in itself constituted an embezzlement. This, however, it is not necessary to decide. The trial judge did not instruct the jury that it ■did. He, it is true, charged the jury that no sum above the prescribed amount could be legally deposited, but at the same time he charged them that “the state treasurer has the right to deposit moneys in the bank designated by the state bo'ard of auditors as a depository, ■and it is not necessary that such deposit shall be upon open aecomit. It is sufficient if such deposit is subject to payment upon demand; and before you can find a verdict of guilty against the defendant for the embezzlement of any money so deposited, you must be satisfied beyond a reasonable doubt that the defendant deposited such moneys with the intention, at the time of so depositing the same, to fraudulently convert the same to his own use and benefit, or to the use and benefit of such bank.” It is quite clear that the defendant desired, and during his term of office succeeded in concealing the fact of these excess deposits in the Bowbells bank. Unless he thought the act in itself criminal, the only other motive for such concealment could have been the fear lest the board of auditors and state bank examiners would, if il were known, order the withdrawal of the funds and thus deprive the bank of their use. This is a motive, indeed, which is apparent throughout all of the evidence and throughout all of the shifting of accounts. If the desire to preserve this use in the bank was the reason of these concealments, and this use was unlawful, even though not necessarily criminal, then there was an embezzlement committed on the occasion of each and every concealment, and the reason for such concealments was for the jury to determine.

These considerations practically dispose of all of the criticisms as to the instructions given and refused. We find that the jury was correctly and fully and fairly instructed as to the law of the case, and that the instructions refused were either fully covered, or were not in conformity to the law as applied to the facts in evidence. We find no prejudice to the defendant in the refusal of any of them, or in the rulings of the trial court generally.

The jury was, in our opinion, fully justified in finding that at any rate the amount of $54165 had been embezzled. The $5,000 certificate of deposit was cashed in order to raise the sum of $1,900 to effect the substitution of funds in connection with the fictitious deposit of $23,-215.26 in the Union National Bank of Grand Forks, which was, as we construe the evidence and as the jury had the right to believe, itself made to cover up a previous false entry in the account of the First National Bank of Fargo, which in turn had, as we believe, and as the jury also had the right to believe, also been made to conceal previous misappropriations. The $5,000 certificate even had, for some reason which was unexplained upon the trial, been taken, not in the name of the state or of the state treasurer, but in that of one Bertie Nelson, though it admittedly represented state funds. When the defendant desired the same cashed' he wrote the following personal letter to the President of the Flaxton Bank:

Friend Burgett:

Enclosed please find C. D. No. 505, for $5,000. Please place $1,900 of this to the credit of the state and send me draft for the balance, $3,100. Also please send me separate draft for $50, the amount of interest due on same.

The defendant himself testified that he did not know that it was ever credited to the state, and the witness Mrs. Mitchell testified that it was not. The jury found that it was not, and was embezzled, and we can hardly set aside their verdict; The mere fact that when the defendant gave up his office in January, 1912, and after the refusal of his successor to accept the Bowbells certificates of deposit, there was a surplus of $150 in the cash drawer, and which he afterwards withdrew without saying anything about the $54.65 item, cannot bo considered proof in any sense that he had not before embezzled it. The matter, at any rate, was one for the jury to pass upon.

There is no merit in the contention that the testimony as to the fact that the $54.65 item was not entered upon the books was elicited in rebuttal. The order of proof is largely within the control of the trial court, and his discretion must largely control. Bowman v. Eppinger, 1 N. D. 22, 44 N. W. 1000; State v. Ekanger, 8 N. D. 559, 80 N. W. 482; State v. Albertson, 20 N. D. 512, 516, 128 N. W. 1122; F. A. Patrick & Co. v. Austin, 20 N. D. 261, 127 N. W. 109; Pease v. Magill, 17 N. D. 166, 115 N. W. 260. The defendant had before admitted that he had received the amount, and it is to us quite conclusively shown that he received it in the course of a series of fraudulent transactions. The evidence was competent not merely to show the embezzlement of the particular item, but a general criminal intent throughout the entire transactions. On cross-examination he stated that he did not know whether it had been accounted for or not. At the end of the trial and on rebuttal the witness Mrs. Mitchell testi fied that the item had not been credited to the state. The only objection made to her testimony was that tbe testimony was “not tbe best, evidence, incompetent as sncb, irrelevant, and immaterial.” The witness was tbe bookkeeper, and bad given much testimony in relation to tbe state of tbe books. There was no objection made that such a question was not proper on rebuttal, and tbe point bere made does not. seem to bave been specifically raised on tbe trial. Tbe defendant could, however, bave been recalled, and proof introduced to show that-it bad been credited, if that was tbe fact. We think that tbe allowance^ of tbe question and answer was fully within tbe discretion of tbe trial judge, and that tbe objection made upon tbe trial was not specific enough in its form to raise tbe point bere made, or to justify a review thereof. See Thomp. Trials, 2d ed. §§ 693, 694; Goldberg v. Sisseton Loan & Title Co. 24 S. D. 49, 140 Am. St. Rep. 775, 123 N. W. 266, 271; Jones v. Angell, 95 Ind. 376; Davis v. Holy Terror Min. Co. 20 S. D. 399, 107 N. W. 374.

Tbe case as a whole is simply this: Tbe defendant is charged with embezzling public moneys, bank drafts, notes, bills of exchange and valuable securities of tbe aggregate value and sum of $60,438.11.. There is no specification of the items in tbe information, though this, amount equals several specific items proved on tbe trial. Tbe authorities are unanimous that in an action for embezzlement tbe specific sum need not be alleged, and that a verdict may be sustained for an amount smaller or greater than that charged. Tbe embezzlement of tbe $60,— 438.11 is conclusively shown by tbe evidence; at least, there is evidence from which the jury might well find it. There is evidence-that during tbe transaction tbe defendant kept a draft for $54.65; in other words, embezzled not merely $60,438.11, but $60,492.76. It is, however, shown that- all of this money except tbe $54.65, and possibly tbe interest on some open account deposits, tbe amount of which is= not to be found in tbe evidence, was returned by tbe defendant after an accounting had been demanded of him. The later return, however,, did not in any way atone for tbe prior crime. Rev. Codes 1905, § 9215. Tbe statute in such cases allows not merely a verdict of guilty, but a verdict which shall specify tbe amount embezzled, and make tbe amount a lien upon tbe property of tbe defendant, so that it may be collected by tbe state. Tbe jury found the defendant guilty as charged in the information, but merely stated the sum embezzled as $54.65, evidently thinking that, the rest of the money being returned, the lien of the judgment should only extend to that amount. As we have said,, there is no specific allegation in the information of the specific sums, or amounts embezzled, merely the aggregate; and that a verdict can be sustained for a greater or less amount is well established. The $54.65 item was interest upon a certificate of deposit which was itself manipulated in furtherance of the aggregate embezzlement. It bore much of the relationship of the wool on the back of a stolen sheep, which a man cuts and keeps, although he afterwards returns the shorn animal. It would be a travesty on justice, to hold that the embezzlement of such a sum was not included in the general offense charged and was not a part of it.

The judgment of the District Court is affirmed.