State v. Rue

75 N.W. 235, 72 Minn. 296, 1898 Minn. LEXIS 678

• Court: Supreme Court of Minnesota
• Decided: May 19, 1898
• Docket: Nos. 11,108-(21)
• Status: Published

Opinion

CANTY, J.

The defendant was convicted of the charge of embezzling three promissory notes and a chattel mortgage, the property of William Deering & Co., a corporation, which notes and mortgage he had in his possession as “agent, servant, bailee and trustee” of said corporation. From an order denying a new trial, he appeals.

1. It is contended by appellant that the indictment is defective because it does not state to whom the notes or any of them were payable. The indictment states the date> amount, time of maturity, and maker of each note, but does not state the payee. It also avers that the notes are the property of said corporation. The indictment. is sufficient. See 2 Bishop, New Crim. Proc. § 732, subds. 1, 2.

2. Under the language of section 415 of the Penal Code, it is not necessary to state in the indictment that the property was embezzled without the consent of the owner. No such provision enters into the definition of the offense. The other points urged against the indictment are wholly untenable.

3. It is contended that the verdict of guilty is not sustained by the evidence.

The defendant was in the employ of William Deering & Co., as its agent in collecting its notes and mortgages from the farmers in and around Chippewa county, in this state, from January to August, 1894. In August William Deering & Co. was succeeded in the business of manufacturing and selling machinery by the Deering Harvester Company. Thereafter the latter company acted as the agent of the former in collecting for it the notes and mortgages it had received on its former sales. Defendant continued in the employment until August 31, 1896. After August 25, 1894, he was paid by the Deering Harvester Company, but he collected the notes and securities of both companies. He also held a written power of attorney from William Deering & Co., dated January 2, 1895, which expired December 1, 1895, and another dated August 5, 1896, which expired December 31, 1896. Each of these powers of attorney was duly executed by William Deering & Co., and was held by him during the time it was in force, and authorized him to collect for William Deering & Co. the notes and securities.

On November 18, 1895, he had in his custody three notes made by T. H. Sloan, and indorsed by J. T. Sloan, for the aggregate sum of $242.60 and accrued interest, payable to William Deering & Co., and its property. On that day he wrote the Deering Harvester Company (which was also the agent of William Deering & Co.) that the notes were worthless, that he had a “chance to close this claim out for $100 in cash,” and advised that the offer be accepted. He received an answer stating,

“One hundred dollars seems a small amount to be accepted in settlement of these notes; yet if, in your opinion, such deal is advisable, you make it. We leave the matter entirely to your own good judgment.”

On January 11, 1896, he took T. H. Sloan to the office of one Rollefson, at Montevideo, and there surrendered the notes and mortgage to Sloan, received from him three new notes, signed by him, for the same aggregate amount and accrued interest, amounting in all to $291.40. The new securities were drawn up by Rollefson. The new nojtes were signed by Sloan’s wife, and they were all secured by a second mortgage on certain real estate, a chattel mortgage on the crops thereafter to be grown on this real estate, and on some horses, cows, a wagon, and some farm machinery. These mortgages were executed by Sloan, and they and the new notes were made payable to one John L. Johnson. Five days later, January 16, defendant wrote the Deering Harvester Company, inclosing a draft “for $100, in settlement in full” of the three notes which were described, the amounts of which were placed in a column, and added together, so as to give the total. The letter contained the following:

“Total, $242.60; compromise, $142.60; balance, $100.00. The maker of this claim, as I made report on November 18th, ’95, offering $100 for the claim, which I accepted in full settlement, security on the four cows, and the heifer and one H. and B. is only 2nd mortgage; the first mortgage being $400.00; so there is no equity in the chattel security.”

The letter then states that T. H. Sloan was drunk most of the time, so that it was difficult to do business with him. It proceeds:

“But to-day I went out after him, and brought him right into town with me, and got the matter closed up, as I figured that whatever there was got out of this claim was clear gain, as very likely the way this party is coming on it would be the best chance to get a dollar out of the claim.”

It is further stated that T. H. Sloan and J. T. Sloan are both worthless and insolvent.

Up to the time that the new notes were taken in Johnson’s name, he had been the cashier of a bank at Renville, but about this time his connection with the bank ceased. Defendant and Johnson both testified that they had entered into an agreement by the terms of which Johnson was to purchase the old notes for $100, and defendant was to get them “fixed up” or renewed; and defendant testified that he took the new notes and securities in Johnson’s name, pursuant to the agreement. Johnson testified that about this time he ceased to be cashier of the bank, and for that reason could not carry out the agreement, and take the new notes and securities, and pay the $100 for them. He indorsed the notes without recourse, and assigned the securities in blank, and delivered them back to defendant, who thereafter took them to Rollefson, at Montevideo, received from him $100, delivered the notes and securities to him, and purchased with the $100 the draft sent in the letter aforesaid. Defendant testified that he sold the notes and securities to Rollefson. The latter died soon after, and was not a witness in this case. Johnson further testified that, though he offered $100 for the notes, he did not know Sloan, or know where he lived, or anything about him. He also testified that in September, 1896, just after defendant was arrested on this charge, he came to the witness, showed him the new notes, and requested him to represent that he had bought the notes and mortgages, and paid for them, and had subsequently sold them to Rollefson. Defendant admitted on the witness stand that he made this request, and that he then had the notes in his possession, although he had long before sold them to Rollefson.

It is contended by appellant that the evidence will not support the charge that he acted fraudulently or dishonestly in the matter, or that he ever derived any benefit from the transaction. We are of the opinion that, on the evidence, these questions were for the jury. We cannot recite the many circumstances which show this, and the many explanations made by defendant. The evidence warranted the jury in finding that the new notes were amply secured, and worth their face, and that defendant knew this when he wrote the letter of January 16. It is also apparent from this letter that he suppressed the truth, aud stated what was not true in several respects. The evidence warranted the jury in finding that defendant intended to, and did, embezzle and appropriate to his own use what did not belong to him, and that he used the means above stated to facilitate and conceal such embezzlement.

4. We are also of the opinion that the evidence warranted the jury in finding that, at the time in question, defendant was the agent of William Deering & Co., as well as- of the Deering Harvester Company; so that it will not be necessary to consider whether the defendant could be convicted on this indictment if he was. only the agent of the latter while it was the agent of the former.

5. Whether or not the evidence showed that William Deering & Co. was a corporation de jure, the articles of incorporation and the oral evidence showed, at least, that it was a corporation de facto, and that is sufficient.

6. Appellant further contends that, if the evidence shows that he embezzled anything, it is the old notes, not the new ones, and that, in the absence of proof of a ratification of the transaction by William Deering & Co., an election to take the new notes and securities, a conviction cannot be sustained under the indictment.

We cannot agree with appellant. The new notes were never the property of Johnson, the payee therein named. They never were the property of defendant. The evidence would, as appellant concedes, warrant the jury in finding that he had general authority from William Deering & Co. to take these new “notes in the form he has taken them. If Sloan gave them in good faith, William Deering & Co. could not, as between it and Sloan, repudiate the transaction. It follows that the new notes were the property of William Deering & Co., whether it elected to accept them or not; •and, if defendant subsequently embezzled them, he is guilty as charged. This is all that it is necessary to say on this point.

7. Exhibit C, the written contract made by defendant and William Deering & Co. when he first entered into its employment in January, 1894, was offered in evidence by the state. Defendant objected to it, but not on the ground that the signatures of the parties were not proved, and the objection was overruled. The state subsequently called a witness who proved the signature of defendant. The instrument was also signed, “William Deering & Co., per Lewis Spooner.” The witness stated that he was familiar with the signature of Spooner, and that this was his signature. He stated on cross-examination that he had never seen Spooner write, but knew the signature from having seen it on a great amount of correspondence which he had with the company, in which Spooner had acted for it. A motion then made to strike out the testimony as to the signature on the instrument was denied. If this was error, it was error without prejudice, because the contract had already been received in evidence, and defendant had waived proof of the signature by failing to object on that ground.

8. The sheriff was called as a witness, and asked the value of certain property covered by this chattel mortgage, which property he had taken in replevin. The objection that the question is incompetent, irrelevant and immaterial did not cover the objection now made, that he had not shown himself competent to testify as to the value.

9. It is assigned as error that the court refused to give the third request to charge, which reads as follows:

“It is the duty of the jurors to carefully examine all of the evidence, and consider the same in the light of and in connection with the court’s instructions, and honestly endeavor to reach and return a verdict either against or in favor of the defendant; but if a juror, or any juror, after he has duly weighed and considered all of the evidence and the court’s instructions, is not then satisfied beyond all reasonable doubt that the defendant is not guilty, it will be the duty of such juror or jurors to vote for the defendant’s acquittal, and to refuse to agree to a verdict of guilty. This will be so notwithstanding all other jurors may be satisfied, and express themselves as satisfied, beyond a reasonable doubt of the defendant’s guilt; for no single juror who has duly weighed and considered all the evidence in the case, and also the court’s instructions, and thereafter and thereupon honestly concluded that the defendant is not guilty or that he is not satisfied beyond all reasonable doubt of the guilt of the defendant, is required to or expected to surrender or abdicate his individual, honest judgment, in order that a majority, or even a large majority, of all the jurors may thereby be enabled with his acquiescence to return a verdict of guilty.”

In our opinion, this request is an invitation to disagree, if possible, and was properly refused. The court charged the jury a great many times that they must find defendant guilty beyond a reasonable doubt, and beyond all reasonable doubt, before they could return a verdict of guilty; and the charge was sufficiently favorable to him in this respect.

10. It is assigned as error that the court refused to charge that a verdict of guilty cannot be found for a conversion of the notes by defendant to the use or benefit of any other person than himself. The indictment charges that defendant appropriated the property to his own use with intent to deprive William Deering & Co., the true owner of the property, of its said property, and to convert the same to his own use. Section 415 of the Penal Code provides:

“A person who, with the intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person, either [then follows subdivision 1, which deals with larceny and false pretenses, and subdivision 2, which deals with embezzlement] steals such property, and is guilty of larceny.”

It will be observed that all of the clauses in the above-quoted first part of the section are in the disjunctive. Construed as it reads, it provides that a person is guilty who took “with intent to deprive or defraud the true owner of his property,” whether such person intended to appropriate it to his own use or not, or to the use of any other person or not. Such person is guilty if he intended to deprive the true owner of his property, no matter to whose use he appropriated it, so long as he did not appropriate it to the use of such owner. The common-law crime of larceny has not been changed by this section, but still remains the same. State v. Friend, 47 Minn. 449, 50 N. W. 692. Lucri causa, or the intent to appropriate the property to the use of the thief or some one else, is not a necessary ingredient in that crime. 2 Bishop, New Crim. Law, §§ 846-848; Williams v. State, 52 Ala. 411; People v. Juarez, 28 Cal. 380; State v. Davis, 38 N. J. L., 176; Delk v. State, 64 Miss. 77, 1 South. 9; Phelps’ Case, 49 How. Prac. 437; dissenting opinion of Learned, P. J., in People v. Woodward, 31 Hun, 57. But, if this is true as to the crime of common-law larceny, it is equally true as to embezzlement, because this part of section 415 applies to both crimes,—defines them both as far as it goes. Then, if it is not necessary in larceny to prove the intent of the accused to convert the property to his own use, it is not necessary in embezzlement. It is sufficient in any case to prove the embezzlement by the accused, with intent to deprive the true owner of his property.

11. It is assigned as error that a private attorney, who was employed by William Deering & Co., was allowed, on the request of the attorney general, to appear and prosecute the defendant. To allow such counsel to appear was, to say the least, discretionary with the trial court. See State v. Ward, 61 Vt. 153, 17 Atl. 483. And it does not appear that the court abused its discretion.

We have examined all the other numerous assignments of error, and find no error in any of the rulings assailed by them, and find none of them having sufficient merit to warrant any further discussion.

Order affirmed.