On July 16, 1934, upon the defendant's appeal, this court handed down a decision reversing the judgment upon the ground that the information filed against the defendant was fatally defective in that: (1) It fails to sufficiently describe the instrument which it is claimed the accused used and passed; and (2) conflicting allegations as to the ownership of the credit against which the check or draft was drawn, resulting in a failure of the complaint to state a public offense. The judgment was reversed and the cause remanded to the district court, with directions to sustain the demurrer upon the grounds stated, and for further proceedings. The respondent filed a petition for a rehearing. The reasons urged in the application were such as to convince us that a rehearing should be granted, and an order to that effect was accordingly entered, and the matter set down for argument at the April term.
The proceedings, other than the judgment roll, are not before us for review. Six errors were assigned, five of which have been abandoned. The remaining assignment assails the order of the court overruling the general and special demurrers to the information. By reference to the original opinion it will be observed that we reversed the judgment upon the grounds: (1) That the information does not state facts sufficient to constitute a public offense; (2) that the information does not substantially conform to the requirements of sections 8830 to 8832, inclusive, Comp. Laws Utah 1917. We there held that the check or draft, by the use of which the defendant transferred the credit, was not
sufficiently described; also that the conflicting allegations as to the ownership of the credit destroyed each other; and that, therefore, the information fails to charge a public offense. It should here be observed that the appellant did not brief or argue either of these propositions. It was for the purpose of affording a full argument upon the questions involved that the rehearing was granted, and upon which we have decided to re-examine the information.
In our opinion we said:
"The accused is charged with using and passing a bank check or draft in the sum of $1,642.36."
We observe that the information is silent as to the date of the check or draft, as to its maker or payee, and while we called attention to the statute defining the crime of misapplying credits of a corporation, we assume that the accused was charged with using and passing a bank check or draft which was not sufficiently described, the information being silent as to the maker and the payee. A re-examination of the information convinces us that the defendant was specifically charged with unlawfully misapplying credits of a corporation, and that we therefore misconceived the nature of the charge. The gist of the offense is that of misapplying credits, and if that result is accomplished, the offense is complete irrespective of the means employed. The information alleges the amount and ownership of the credit, the name of the bank upon which the check or draft was drawn, that the defendant deposited the sum of $1,642.36 to his own account in the Continental National Bank, and charged the same against the Utah Poultry Producers Co-operative Association. We are now, therefore, of the opinion, and so hold, that the date of the check and the name of the maker and payee were immaterial.
The defendant assigns as error that the information does not substantially conform to the requirements of sections 8830 to 8832, inclusive, Comp. Laws Utah 1917. These sections
require that the information must contain the title of the action, the name of the parties, a statement of the 1 acts constituting the offense in ordinary and concise language, in such a manner as to enable a person of common understanding to know what is intended, and must be certain and direct as to the party charged, the offense charged, and the particular circumstances of the offense when they are necessary to constitute a complete offense.
It was upon this assignment we held that the information did not sufficiently describe the check or draft. Upon the original submission, the defendant's contention is summed up as follows:
"We contend that the third ground of the defendant's demurrer should be sustained, as said information is ambiguous, and it can not be ascertained from a reading of the information whether the defendant is charged under section 8370 for misapplying credits of a corporation, or whether he is sought to be charged with having embezzled $1,642.36 lawful money of the United States of America, the money then and there belonging to the Utah Poultry Producers Cooperative Association, and entrusted to and left with the defendant, William A. Pritchett, by a reason of his being the office manager of that corporation. The fourth ground of demurrer interposed by the defendant is well taken, said information being duplicitous in that it attempts to charge the defendant with a violation of section 8370, by willfully misapplying the credit of a corporation, and also seeks to charge him with the general crime of embezzlement, by having taken $1,642.36 from the Utah Poultry Producers Cooperative Association, of which he was the office manager."
The defendant did not contend, until after a rehearing had been granted, that the check was insufficiently described, nor did he complain of any conflicting allegations in the information. We must assume, in view of the verdict, that there was sufficient evidence of a misapplication of funds, which was the specific act charged in the information. If the transfer of the credit was actually accomplished and misapplied by appellant, the technical steps by which it was accomplished become unimportant. It is the ultimate result which constitutes the offense. It is alleged that the appellant
willfully, unlawfully, feloniously, and fraudulently misapplied said credit by depositing to his own account and credit in the Continental National Bank of Salt Lake City, Utah, a bank check or draft for $1,642.36, drawn by appellant against the credit of the Poultry Association that it had with the National Copper Bank, and that in due course the National Copper Bank honored and paid the check, and charged the amount thereof against the account of the Poultry Association, and with intent to defraud and injure the association, misapplied the credit. We are now of the opinion, and so hold, that this is a sufficient compliance with the requirements of sections 8830 to 8832, inclusive.
Upon the rehearing, but not before, appellant argues that there are inconsistent allegations in the information. The averments referred to are as follows:
"William A. Pritchett did then and there as such agent wilfully, unlawfully, feloniously and fraudulently misapply a credit of said corporation (Utah Poultry Producers Cooperative Association), which it then and there had with the National Copper Bank of Salt Lake City, Utah, a corporation, in the sum of $1,642.36. * * * And the said sum of money was charged against and deducted from the aforesaid account and credit of the said Utah Poultry Producers Cooperative Association which it then and there had with the National Copper Bank. * * * And so, and in the manner aforesaid, the said defendant William A. Pritchett, did then and there, and with intent to defraud and injure said Utah Poultry Producers Cooperative Association, misapply its said credit in the sum of $1,642.36. That said defendant William A. Pritchett was not then and there, nor was any other person or corporation whatsoever entitled to said check or draft or the proceeds thereof or the said credit in payment of a just demand, or otherwise, or at all."
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On July 16, 1934, upon the defendant's appeal, this court handed down a decision reversing the judgment upon the ground that the information filed against the defendant was fatally defective in that: (1) It fails to sufficiently describe the instrument which it is claimed the accused used and passed; and (2) conflicting allegations as to the ownership of the credit against which the check or draft was drawn, resulting in a failure of the complaint to state a public offense. The judgment was reversed and the cause remanded to the district court, with directions to sustain the demurrer upon the grounds stated, and for further proceedings. The respondent filed a petition for a rehearing. The reasons urged in the application were such as to convince us that a rehearing should be granted, and an order to that effect was accordingly entered, and the matter set down for argument at the April term.
The proceedings, other than the judgment roll, are not before us for review. Six errors were assigned, five of which have been abandoned. The remaining assignment assails the order of the court overruling the general and special demurrers to the information. By reference to the original opinion it will be observed that we reversed the judgment upon the grounds: (1) That the information does not state facts sufficient to constitute a public offense; (2) that the information does not substantially conform to the requirements of sections 8830 to 8832, inclusive, Comp. Laws Utah 1917. We there held that the check or draft, by the use of which the defendant transferred the credit, was not
sufficiently described; also that the conflicting allegations as to the ownership of the credit destroyed each other; and that, therefore, the information fails to charge a public offense. It should here be observed that the appellant did not brief or argue either of these propositions. It was for the purpose of affording a full argument upon the questions involved that the rehearing was granted, and upon which we have decided to re-examine the information.
In our opinion we said:
"The accused is charged with using and passing a bank check or draft in the sum of $1,642.36."
We observe that the information is silent as to the date of the check or draft, as to its maker or payee, and while we called attention to the statute defining the crime of misapplying credits of a corporation, we assume that the accused was charged with using and passing a bank check or draft which was not sufficiently described, the information being silent as to the maker and the payee. A re-examination of the information convinces us that the defendant was specifically charged with unlawfully misapplying credits of a corporation, and that we therefore misconceived the nature of the charge. The gist of the offense is that of misapplying credits, and if that result is accomplished, the offense is complete irrespective of the means employed. The information alleges the amount and ownership of the credit, the name of the bank upon which the check or draft was drawn, that the defendant deposited the sum of $1,642.36 to his own account in the Continental National Bank, and charged the same against the Utah Poultry Producers Co-operative Association. We are now, therefore, of the opinion, and so hold, that the date of the check and the name of the maker and payee were immaterial.
The defendant assigns as error that the information does not substantially conform to the requirements of sections 8830 to 8832, inclusive, Comp. Laws Utah 1917. These sections
require that the information must contain the title of the action, the name of the parties, a statement of the 1 acts constituting the offense in ordinary and concise language, in such a manner as to enable a person of common understanding to know what is intended, and must be certain and direct as to the party charged, the offense charged, and the particular circumstances of the offense when they are necessary to constitute a complete offense.
It was upon this assignment we held that the information did not sufficiently describe the check or draft. Upon the original submission, the defendant's contention is summed up as follows:
"We contend that the third ground of the defendant's demurrer should be sustained, as said information is ambiguous, and it can not be ascertained from a reading of the information whether the defendant is charged under section 8370 for misapplying credits of a corporation, or whether he is sought to be charged with having embezzled $1,642.36 lawful money of the United States of America, the money then and there belonging to the Utah Poultry Producers Cooperative Association, and entrusted to and left with the defendant, William A. Pritchett, by a reason of his being the office manager of that corporation. The fourth ground of demurrer interposed by the defendant is well taken, said information being duplicitous in that it attempts to charge the defendant with a violation of section 8370, by willfully misapplying the credit of a corporation, and also seeks to charge him with the general crime of embezzlement, by having taken $1,642.36 from the Utah Poultry Producers Cooperative Association, of which he was the office manager."
The defendant did not contend, until after a rehearing had been granted, that the check was insufficiently described, nor did he complain of any conflicting allegations in the information. We must assume, in view of the verdict, that there was sufficient evidence of a misapplication of funds, which was the specific act charged in the information. If the transfer of the credit was actually accomplished and misapplied by appellant, the technical steps by which it was accomplished become unimportant. It is the ultimate result which constitutes the offense. It is alleged that the appellant
willfully, unlawfully, feloniously, and fraudulently misapplied said credit by depositing to his own account and credit in the Continental National Bank of Salt Lake City, Utah, a bank check or draft for $1,642.36, drawn by appellant against the credit of the Poultry Association that it had with the National Copper Bank, and that in due course the National Copper Bank honored and paid the check, and charged the amount thereof against the account of the Poultry Association, and with intent to defraud and injure the association, misapplied the credit. We are now of the opinion, and so hold, that this is a sufficient compliance with the requirements of sections 8830 to 8832, inclusive.
Upon the rehearing, but not before, appellant argues that there are inconsistent allegations in the information. The averments referred to are as follows:
"William A. Pritchett did then and there as such agent wilfully, unlawfully, feloniously and fraudulently misapply a credit of said corporation (Utah Poultry Producers Cooperative Association), which it then and there had with the National Copper Bank of Salt Lake City, Utah, a corporation, in the sum of $1,642.36. * * * And the said sum of money was charged against and deducted from the aforesaid account and credit of the said Utah Poultry Producers Cooperative Association which it then and there had with the National Copper Bank. * * * And so, and in the manner aforesaid, the said defendant William A. Pritchett, did then and there, and with intent to defraud and injure said Utah Poultry Producers Cooperative Association, misapply its said credit in the sum of $1,642.36. That said defendant William A. Pritchett was not then and there, nor was any other person or corporation whatsoever entitled to said check or draft or the proceeds thereof or the said credit in payment of a just demand, or otherwise, or at all."
It is now argued upon resubmission that the last averment is inconsistent with and negatives the three other averments. This contention, however, cannot be sustained. The last averment is not essential in view of the other allegations of the complaint and may be regarded as mere surplusage. In any case it creates no more than an ambiguity. Heeser v. Miller, 77 Cal. 192,19 P. 375; Churchill v. Lauer, 84 Cal. 233, 24 P. 107. The allegation of ownership of the credit
by the Utah Poultry Producers Association was a necessary averment. The apparently inconsistent allegation that no one at the time was entitled to the check or draft or credit in payment of a just demand is not an essential averment. It is alleged that the defendant was not then and there, nor was any other personor corporation whatsoever, entitled to the check or draft or the proceeds thereof, or the said credit. Other than what person or corporation? Obviously other than the Utah Poultry Producers Co-operative Association. Viewed in this light it creates no ambiguity and is not necessarily inconsistent with, or destructive of, the allegations of ownership by the Utah Poultry Producers Co-operative Association.
Title 105, c. 21, § 15, R.S. Utah 1933, provides as follows:
"No information or indictment is insufficient, nor can the trial, judgment or other proceeding thereon be affected, by reason of a defect or imperfection in matter of form which does not tend to the prejudice of a substantial right of the defendant upon the merits."
Chapter 43, § 1, of said title, provides:
"After hearing an appeal the court must give judgment without regard to errors or defects which do not affect the substantial rights of the parties. If error has been committed, it shall not be presumed to have resulted in prejudice. The court must be satisfied that it has that effect before it is warranted in reversing the judgment."
Appellant does not complain of any error in the proceedings during the trial of the case. With only the judgment roll before us we must assume that no evidence, other than proper legal evidence, was admitted; that no proper legal evidence was excluded; and also that the instructions correctly stated the law as applied to the evidence. Exceptions taken to the instructions are abandoned. Appellant does not claim any prejudice by reason of any of the proceedings, or that his rights were not fully protected during the trial. The only objections are purely technical and not substantial. This court did not, in its original opinion, agree with appellant's contentions, notwithstanding which we felt it our duty to determine whether or not the information stated a public
offense, and we believed that we had conscientiously discharged that duty. It is equally our duty to correct the error, and this we do without hesitation.
Our former decision is set aside, and the judgment of the district court is affirmed.