State v. Millard

138 N.W. 366, 30 S.D. 169, 1912 S.D. LEXIS 225

• Court: South Dakota Supreme Court
• Decided: October 25, 1912
• Status: Published

Opinion

CORSON, J.

Upon an information duly filed by the state’s attorney of Minnehaha county, the defendant was tried and convicted of the crime of embezzlement. The information charges, in substance, that the defendant betwe'en the 1st of December, 1911, and the 15th of February, 1912, being a clerk, servant, and employe of E. D. Clark, and being a person over the age of 18 years, and not being an apprentice of said E. D. Clark, did by virtue of his employment as such clerk and servant as aforesaid receive and take into his possession, care, and control from said E. D. Clark “55 'head of red Duroc Jersey hogs” of the value of $1,100, all of said property being the personal property of said E. D. Clark; that all said personal property was received by said Millard into his possession, control, and care by virtue of his employment as such clerk, servant, and employe' of said Clark; that said Millard did willfully, unlawfully, feloniously, and fraudulently convert to his own use and embezzle all the personal property aforesaid, and by the means aforesaid the said Millard did commit the crime of embezzlement. From the judgment of conviction and order denying a new trial the ‘ defendant 'lias appealed to this court. , '

It is disclosed by the evidence that Mr. Clark, -the owner of the hogs, was a resident, of Sioux Falls, and owned a ,farm of 200 acres , about three miles from the city on which he’had iii December, 1911, 142 hogs; that the defendant was in the employ of Clark in the management of the farm, and had control of four or five other emplpyes who worked on the farm; that about the 15th of February, 1912, Clark made an examination of the hogs, and found fhat there were 55 missing"; that he had several conver-sátions with the defendant as to, what had become of them. At first the defendant insisted that they must be on the place, but, on the hogs being counted and the 55 being found missing, he denied that he had any knowledge of what had become of them. There was evidence tending to prove that the defendant had been seen on the road to Sioux alls with teams hauling hogs, and there was evidence tending to prove that the defendant had sold hogs to a butcher in Sioux Falls, and that the value of the 55 hog-s was between $1,100 and $1,200, and, so' far as-the record discloses, the defendant introduced no evidence accounting for the disappearance of these hogs or as to -what had become of them.

The defendant assigns as error that the court erred in overruling certain objections to the introduction of testimony, in denying defendant’s motion for directing a verdict in his favor, in giving certain portions of its charge to the jury, and in omitting to give certain instructions to the jury.

[1] Mr. Clark, a witness for the state, wás asked the following question by the state’s attorney: “State what quantity of hogs you had upon the premises, described here, on or about the 1st day of December, 1911.” To this the defendant objected as incompetent, irrelevant, and immaterial under the allegations in this information, and especialfy for the reason that the allegation charges specifically that these hogs were turned over by Mr. Clark to the defendant. The objection was overruled, and the witness answered that he had 142 hogs. It is contended bjr the defendant that since the information stated that the hogs in question were received by the defendant- into his care and possession between the 1st of December and the 15th of February, and did not allege that the complaining witness had any specific nurnber of hogs on his premises within the dates named, that the state was ■permitted to change the issue in the case, and a positive, variance was created in the issues by the ruling of the court above noted. We are of the opinion that the objection to the question was properly overruled, and that there was no variance. The question was a preliminary one, and it was clearly proper tp' show by the witness the number of hogs in the possession of the defendant belonging to the witness, as this was followed by his evidence tending to prove that on the 15th of February following, upon counf-ing the hogs, he found that 55 were’missing, and the evidence was clearly competent, therefore, for the purpose of showing the number of hogs under the charge and control of the defendant in order to lay the foundation for proof of the number that were missing.

[2] It is further contended by the defendant that there was a fatal variance between the description of the property in the information and the proof. It will be observed that in the information the property is described as “55 head of red Duroc Jersey hogs.” Clark;, the owner of the hogs, in answer to the question. “AVhat kind of hogs were they?” answered, “Duroc Jersey.” Other witnesses spoke of them as “red1 -hogs.” We are of the opinion that this description of 'the hogs was substantially correct, although the witness Clark admitted that they were not pure bred Duroc Jersey. There is no allegation in the information that they were pure bred Duroc Jerseys, and hence there was no substantial variance between the description in the information and the description given by the witness. The object of the description of the hogs in the information was to notify the defendant generally of the description of the hogs which he was charged with embezzling, and clearly the hogs were sufficiently identified by the description given by the witnesses, and the defendant could not have been misled by the mere fact that they were not proven to be pure bred Duroc Jersey hogs.

The case of Loyd v. State, 22 Tex. App. 646, 3 S. W. 670, relied on by the defendant, was a case where a- party was charged with removing from the state mortgaged property with the intention to defraud the mortgagee, and the property was described in the indictment as “one chestnut sorrel pony * * * and one Studebaker two-horse buggy.” The court says as to the horse and buggy: “The evidence is that the one removed from the state by the defendant was a sorrel, not a .chestnut sorrel, as described in the indictment and -mortgage, and if was further proved that there is a marked difference between the colors of sorrel and chestnut sorrel. As to the wagon, it -was not proved - that it was a. Studebaker, nor even that it was a, two-horse wagon. These defects in the evidence -were called.to the attention of the court by a special instruction- requested by defendant, which was refused.” It'will be observed that in that case there was a material variance between the description o-f the horse in the indictment and the description of the horse given by the witnesses, and that as to the wagon there -was no evidence as to the make of the wagon, or that it was-, in fact, any such wagon as that described in the indictment. It will be noticed that there is a marked difference between the facts in that case and the case at bar. Assuming that a particular description of the property is necessary in an indictment or information for embezzlement, we are of the opinion that the description of the property given by the witnesses in the case at bar sufficiently identified it as the property described in the, information, and that there was no material, variance between the description of the property in the information and the property as described- by the witnesses.

[3] By assignment No. 3 -it is claimed that the jury was impressed during -the trial and while they were considering their verdict, with the theory that -it was a ¡civil action for the recovery of damages.for the loss .of the hogs alleged to have -been embezzled from the fact that the court submitted to the -jury, and required them to- find the value of the property. But -we are of the opinion that there is no merit in -this contention." . The court in its charge to the jury instructed them: “In this proceeding the state accused the defendant, J. R. Millard, with.the crime -of embezzlement.” And -the -court proceeded to- instruct the jury fully as to what constituted, the crime of embezzlement, and the .jury having returned into court, the foreman remarked .-to the court:. “We came before, you to ask a question in regard (to) returning a verdict without inserting the amount of damages.” To which the court replied: “We would have to 'ascertain the damage in some way or other. The crime of embezzlement is very much like larceny, and in cases of larceny, where the value is not to exceed $20, it is petit larceny, and, if it exceeds $20, -it is grand larceny. The punishment in cases of embezzlement is' precisely the same 'as in larceny. So we need to know the amount, or, at any rate, whether it is over $20 or not. That is all we really need to know. The exact amount is not necessary to determine.” We must presume that the jury were men of ordinary intelligence, and that they could not have inferred that they were trying a civil case from the language of the court, especially from his answer to their question.'

The fifth assignment of error is, in substance, that there was a failure on the part of the state to prove the defendant was over the age of 18 years, that the evidence was insufficient to sustain the verdict, and that the court erred in its failure to instruct the jury upon the subject of circumstantial evidence. This assignment of error, in effect, contains three propositions: (1) That there was a failure on the part of the state to prove that the defendant wa*-over the age of 18 years; (2) that the evidence was insufficient'to sustain the verdict; and (3) that the court erred in its failure to instruct the jury upon the subject of circumstantial evidence. We will take up these propositions in their order.

[4] It is true that there is no direct evidence, so far as the. record discloses, that the defendant was not within the age of 18 years, but there was indirect evidence to the effect that the defendant had been in the employ of the prosecuting witness as manager of his farm for six years prior to the filing of the information, and that he was a man of family residing upon the farm. We are of the opinion that from, the evidence, in the absence of any evidence on the part of the, defendant upon the subject of his age, the jury were cléarly warranted in finding that the defendant was over the age of 18 years. In the analagous case of State v. Ingraham, 136 N. W. 258, the learned Supreme Court of Minnesota held: “It is suggested that there was no evidence that the prosecutrix was not the wife of the defendant. If it was incumbent upon the prosecutrix to p"Ove a negative, the indirect evidence was ample to establish that the prosecutrix was not the wife of the defendant.”

The contention of' the defendant that the evidence was in-sulficient to sustain the verdict is, in our bpinion, untenable.

[5]. In 10 A. & E. Enc. of Law, 983 the required proof to sustain a conviction in a case of embezzlement is thus stated : “A^ a géneral jrtile, to "make out a ca.se .of embezzlement .'under the’, statutes,'it,, is necessary to. .show, first, 'that the 'accused falls Avitliin one of the classes of persops''named, or occupies, one , of the édu-cary relations specified in’thp statute’;' second, that, the' thing converted or appropriated is of such a character aá . to be within the protection of the:statute; third, that ft belongs to. the master or principal ,of some one other than the accused; fourth, in most jurisdictions that it was in the possession of the accused át the time of 'tlie'^diiversibn/so 'fhat ’nóhtfésiydss 'wás' coanmítted in taking' it;'fifth',’ that'a relation''of ‘ trust Or' cóhfideiicé existed,' and that the property came into thé posáéssibn of the accused, and was held'by 'him, in some jurisdiction's by' virtue of fils’ employment or office, and in others, for of in the name or on account :of his master Of employer; sixth,'" that his' dealing with the property' constituted a conversion' or appropriation of thé same ; seventh, tliaf there was ' a , fraudulent "intent to deprive the oWncr of his property.” In the case at bar it would séem'that all these requirements wéfé'complied with. It was shewn that the defendant cime within one of the classes of persons'named-, of occupied one of the1 fiduciary’ relations specified "in'the Statute; that the property converted whs- of- such a charac-t-ei- 'ás'tú be wi-tliin the 'protection' of the'law;1 that it belonged to. his employer',' the'prc-secuting witness; that'it was in the possession-of the defendant as the -manager of the property for his said"'employer, and that the property : was' held by him for and' on account of- his- said employer ; and that his disposition of 'the ; property was ‘without the knowledge or-•Consent of the owner,' and' was;’therefore, an appropriation of the same. 'The evidence, therefore, clearly-warranted the jury in their finding-that the - defendant had disposed of the hogs with the fraudulent intent to embezzle them and 'to convert them to his own .use, and" the verdict of' the -jury is clearly sustained by the evidence:'

[6] It is further contended by' tile déféndant that the court erred'in its charge to the jury in failing to instruct them upon the question of circumstantial evidence, hut this contention is clearly- untenable' for the reason that’ the failure of the court to instruct the'jury as to the haturé Of áuch evidénce did not constitute reversible error as the court was not specially requested'by the accused to give an instruction upon that subject. Frye v. Ferguson, 6 S. D. 392, 61 N. W. 161; Garrigan v. Kennedy, 19 S. D. 11, 101 N. W. 1081, 117 Am. St. Rep. 927, 8 Ann. Cas. 1125; Belknap v. Belknap, 20 S. D. 482; 107 N. W, 692; Winn v. Sanborn, 10 S. D. 642, 75 N. W. 201.

. [7] It ife further contended, by the/defendant'' that' there' is no evidence of any demand made upon him for the property, and that, in the absence, of such-, a demand, he -could-not properly be convicted of embezzlement, but this contention is clearly untenable as the section of the'Code (section'626) under which-this information was. drawn requires no such, demand and refusal and no such demand or refusal is .alleged in the information. It seems to be generally held that in cases of embezzlement no demand is necessary. In 15 Cyc. 495, the law upon the subject of demand is thus Stated:1 “In’order to'constitute embezzlement, the accused must be shown to have fraudulently converted money or other .property to his own, or some one’s else, use, or to have fraudulently secreted it, with intent so to convert it; - -However, the weight of authority is to- the effect that a demand for the money or other property alleged to have been embezzled need not be made by the prosecution, in the absence of statute to ’ the contrary, except under the peculiar circumstances of the particular case.” In the case of People v. Ward, 134 Cal. 301, 66 Pac. 372, the learned Supreme Court of that state, discussing the necessity qf a 'demand in cases of embezzlement, says: “A demand is not 'an indi-spensible requirement of law in all cases,’ as contended by the appellant, nor can it be true that ‘without such demand, no offense exists.’ A demand, followed by a refusal, if the other essential facts • exist is evidence of embezzlement, and - sometimes indispensible evidence of it, but'is -the' fraudulent and felonious conversion of the money or other property that constitutes the offense, and that may often be proved without a demand. People v. Bidleman, 104 Cal. 608 (38 Pac. 502) ; People v. Royce; 106 Cal. 173 (37 Pac. 630, 39 Pac. 524) ; Wharton’s Criminal Raw, 1030.” In Commonwealth v. Hussey, 111 Mass. 433, the Supreme Court of Massachusetts in discussing the question of demand says-: “A fraudulent conversion to the defendant’s own use would 'be embezzlement, whether demand were made or not, and, of course, such demand need neither be averred nor proved.” Commonwealth v. Mead, 160 Mass. 319, 35 N. E. 1125; State v. Reynolds, 65 N. J. Law, 424, 47 Atl. 644; Commonwealth v. Tuckerman, 10 Gray (Mass.) 173.

Finding no error in the record, the judgment of the circuit court and order denying a new trial are affirmed. -