State v. Hoffman

112 N.W. 103, 134 Iowa 587

Opinion

McClain, J.

„ 1. Embezzle- . officers dictment. 'By motion in arrest of judgment the defendant questioned the sufficiency of the indictment on the ground that it did not allege that defendant had failed to account for the money which he is charged J ° with converting to his own use. The allegation of the indictment is that defendant, being a constable, did “willfuly, unlawfully, feloniously, and fraudulently embezzle and convert to his own use money, to wit, . . . belonging to Lazo Banjanin and Emile Bapiach, which said money came into the hands of said Hoffman by virtue of his said office.” Under this indictment, as conceded by defendant, the. purpose was to charge the crime of embezzlement by a public officer as described in Code, section 4840. That section defines at least two forms of embezzlement by a public officer; the first being of public money or property, the second of any money or property coming into the hands of such officer by virtue of his office. What is said in the last sentence of the section with reference .to failure to account upon demand relates to public money. That sentence, which was added to the section as it previously stood by chapter 67, of the Acts of the 26th General Assembly, creates a distinct form of the crime of embezzling public money, and the provision therein as to failure to account has no reference to the offense of embezzlement described in the preceding portion of the section. State v. McKinney, 130 Iowa, 370. As to the conversion of money or property coming into the hands of the officer by virtue of his office, which is not public money, the crime as described consists in the conversion, and with reference to such money nothing is said which indicates the necessity of alleging a demand or a failure to account. These facts might be material to be shown in order to establish conversion, but the criminal act consists in the conversion alone, and, if such conversion is shown otherwise than by evidence of failure to account on demand, the crime is sufficiently established. It is not necessary, therefore, to set out in the indictment the particular evidence by which the conversion will he established. The conversion itself is the ultimate fact, and the allegation of that fact in the indictment is sufficient.

The contention for appellant is that, where a statute creates an offense described in general terms constituting a legal conclusion, the indictment thereunder must specifically describe the offense, and bring it within the legal conclusion. But, if an act of a particular description is made criminal, nothing further need be alleged in the indictment than the doing of the specific act. Under such circumstances, it is sufficient to follow the language of the statute in describing the act charged. State v. Johnson, 114 Iowa, 430; State v. Dankwardt, 107 Iowa, 704; State v. Porter, 105 Iowa, 677. The conversion itself is the act, and nothing further need be alleged by way of description. This is the ruling in State v. King, 81 Iowa, 587, with reference to a conversion of public moneys. The court in that case says: “ The gist of the offense is the wrongful conversion of the public, money, and it is wholly immaterial and mere surplusage to state whether the defendant used it in paying his debts, in purchasing property, had it on deposit in bank, carried it on his person, or loaned it to others; and the fact that three different modes of concealing the money are set forth in the indictment is wholly immaterial.”

Cases relied upon by counsel for appellant holding that it is necessary in an indictment of an officer for embezzling public money to charge that it is unaccounted for are not in point. State v. Brandt, 41 Iowa, 593; State v. Parsons, 54 Iowa, 405. As already pointed out, this requirement of the statute that the money shall have been unaccounted for in order to constitute an embezzlement of public funds does not apply to an embezzlement by a public officer of money, not a part of the public funds, intrusted to him by virtue of his office and converted to his own use. The precedents for indictments given in the books do not, so far -as we can discover, contain any further allegation than that of embezzlement and conversion. Bishop, Directions & Forms, sections 407-409; 1 McClain, Criminal Law, section 556a. If that allegation is an allegation of fact and not a mere conclusion of law, then it is sufficient, and we are not justified in holding in view of all the precedents that it is a mere conclusion of law. The objection to the indictment was not well taken.

2. Change of venue: discretion. II. The court overruled defendant’s motion for change of venue, the grounds for which were supported and contro-' verted by various affidavits as to excitement and prejudice in the county resulting from the fact of a pre- , , _ .. • t mi vious trial tinder the same indictment. ihe affidavits are in the usual form, expressing the convictions of the affiants one way or the other on the question whether in their opinion there was such excitement in the county resulting from the publication of proceedings on the former trial that a fair and impartial trial could not-be obtained. Under such circumstances we have uniformly held that the discretion of the trial court in refusing to grant a change of venue would not be interfered with on appeal. See State v. Icenbice, 126 Iowa, 16, and other cases cited in that opinion, and in the notes to Code, section 5348.

3. Evidence: impeachmennt by use of granc minutes jury. III. Defendant was examined as a witness in his own behalf, and on cross-examination, for the purpose of impeachment, his attention was called to spe-. eific portions of the minutes of his evidence given before the grand jury investigating the charge against him. It is contended by counsel that the action of the court in allowing portions of these minutes to be used, by the State for impeaching purposes over defendant’s objection was error. By Code, section 5258, it is provided that the clerk of the grand jury shall preserve minutes of the proceedings and of the evidence given before it, and that, when evidence is taken, it shall be read over to and signed by the witness. In this section, as it stood prior to the adoption of the present Code, there was no provision for having the evidence of the witnesses before the grand jury read over to and signed by them, and it was held that the minutes kept by the clerk of the grand jury under such provisions could not be used for purposes of impeaching the testimony of such witnesses as given on the trial. State v. Hayden, 45 Iowa, 11. In State v. Reinheimer, 109 Iowa, 624, decided after the present Code took effect, the previous case of State v. Hayden is followed; but the question there involved was as to the use of the evidence of the witness taken down by the shorthand reporter on the preliminary examination of defendant, and it does not appear that the witness had signed the evidence thus taken down before the. committing magistrate. The provisions of .Code, section 5221, relating to the preservation of the minutes of testimony taken before a committing magistrate, do not involve the. reading to or signing by the witnesses of the minutes of their testimony. Therefore the minutes of the testimony of a witness on preliminary examination are subject to the same objection when offered by way' of impeachment as minutes of evidence taken before the grand jury under the statutory provisions as they existed prior to the adoption of the Code of 1891. Under Code, section 5258, as it now stands, we have held that the minutes of testimony before a grand jury read over to and signed by the witness may be used on the trial for impeachment purposes. State v. Phillips, 118 Iowa, 660. In State v. Woodward, 132 Iowa, 675, it was held improper to use the minutes of a witness’ testimony before the grand jury as a basis of asking impeaching questions on cross-examination, the witness not being allowed on demand to examine the minutes on which the impeaching questions were founded, and, while it is assumed that such minutes could not be used, no reference is made to the case of State v. Phillips, supra, and the change in the statute is not referred to. We think there was no purpose in the decision of the case of State v. Woodward to overrule the express decision in State v. Phillips, in which it is said: “When a witness is shown to have voluntarily signed a written statement, the contents of which is fully disclosed to him, we see no reason in the statute or in the ordinary principles of the law of evidence why it is not always competent for the purposes of his impeachment when the proper foundation has been laid.” There was no error, therefore, in allowing the State to use the minutes of the testimony of the defendant given before the grand jury for the purpose of impeaching his testimony as a witness on the trial.

4. Same On the cross-examination of the defendant as a witness his attention was called, as already indicated, to conflicting statements which he had made in his testimony before the grand jury, for the purpose of affecting-his credibility. In surrebuttal a witness was called for the defendant and asked as to defendant’s general reputation for truth and veracity in the community, and on the objection of the State the witness was not allowed to answer. Assuming that the witness would have testified that defendant’s reputation as to truth and veracity was good, w© are asked to hold that, where a witness is impeached by showing inconsistent statements, his testimony may be re-enforced by proof of general good character as to truth and veracity. On this question the authorities are in direct conflict. See 2 Wigmore, Evidence, section 1108, where the view is expressed that general good reputation for truth' and veracity is too remote to be admissible in support of the testimony of a witness impeached by proof of conflicting statements. The authorities in this State support that view. State v. Archer, 73 Iowa, 320; State v. Owens, 109 Iowa, 1. We see no occasion for changing the rule which has been adopted by this court on the subject. Evidence of good character is usually admissible only where character has been assailed; for, in the absence of some attack, the character of the witness is presumed to be good. Contradictory statements are shown, not for the purpose of proving his general character as to truth and veracity to be bad, but to show that his testimony as to the particular matter with reference to which he is contradicted by proof of conflicting statements is not entitled to credit.

5. Embezzlement by official: proof essential. V. With reference to the giving and refusal of instructions a few suggestions only are necessary in support of the correctness of the court’s action. The instructions asked and refused, so far as they contained correct propositions of law applicable to the evidence, were sufficiently covered by the instructions given. 'The instructions given are assailed because they fail to embody the requirement that defendant must be affirmatively shown to have failed to account for the money on demand. The objection here insisted upon by counsel is substantially the same as that made to the indictment for failing to allege failure to account. The court correctly instructed the jury as to what would constitute conversion, and how conversion might be proved. If conversion was established by sufficient evidence, then proof of specific demand and failure to account was not necessary.

No question was raised by the motion for a new trial, which the court overruled, that is not disposed of by the previous discussion, save the contention that the verdict is without support in the evidence. We think there is ample evidence to support the verdict, and we see no occasion to interfere with the'conclusion reached by the jury.

The judgment of thé trial court is therefore affirmed.