State v. Millard

1. Embezzlement — Evidence—Preliminary Question — Admissibility. In tbe trial of a farm manager for embezzling a certain number of hogs between December 1st and the 15th of February following, evidence of the owner showing the number of hogs he had on the premises on or about December 1st was admissible, in answer .to a .preliminary question, as showing the-number of hogs in defendant’s possession -belonging to witness, in laying foundation for proof of the number missing. 2. Embezzlement — Information1—Variance. An information -charged embezzlement .of “55 head of red Duroc Jersey Hogs;” witnesses spoke of them as “red hogs” and as “Duroc Jersey.” Held, there was no substantial v-ariance ■between allegation and proof, though the prosecuting witness admitted the hogs were not pure -bred Duroc Jerseys. 3. Embezzlement — Value of Property — Instructions. On a trial for embezzling hogs the court instructed the jury that the value of the hogs was material only to ascertain whether it w-as greater or less than $20., in fixing the degree of the offense. Held, the instruction could not have led the jury to -believe the trial was one in a, civil action, for recovery of damages. 4. Embezzlement — Proof of Age — Sufficiency. Evidence in a trial for embezzling hogs, that defendant had been in prosecuting witness’ employ as manager of his farm for six years and w-as a man of family residing thereon, was sufficient, in absence .of any evidence on part of defendant on the subject, to sustain a finding that he was more than 18 'years of age. 3. Embezzlement — Requisites ofi Proof — Sufficiency of Evidence. Where the evidence showed defendant came within one of the specified classes of persons named, or occupied one of the fiduciary relations specified by statute, that the -property converted by him was such in character as to be within -protection of law, that it belonged to his employer, that it was in defendant’s possession as manager thereof for and waj held by him for and on account of employer, and that his disposition thereof was without the knowledge or consent of employer owner; held, sufficient to sustain -the jury’s finding of guilty of embezzlement. 0. Criminal Law — Instructions—Request for Instructions — Circumstantial Evidence. Failure to instruct as to nature of circumstantial evidence is not reversible error, in absence of a specific request therefor. 7. Embezzlement — Demand o£ Property — Proof—Allegation. In a trial oí a farm manager for embezzling bogs of bis employer, the state need not prove a demand made upon defendant for the property. Sec. 626, Pen. Code, requires no such demand and refusal, and none is alleged in the information.

Appeal from Circuit Court, Minnehaha County. Hon. Joseph W. JONES, Judge. Defendant, J. R. Millard, was convicted of embezzlement; ■ and from such judgment and from an order denying a new trial, he appeals. The Court erred in overruling the objection of the defendant to- the following question upon the grounds therein stated: Q. State what quantity of hogs you had upon -the premises, described here, on or about the first day of December, ign? Objected to as incompetent, irrelevant and immaterial under the allegations in this information, and especially for the reason that the allegation charges specifically that these certain hogs were turned over by Mr. Clark to the defendant. Objection overruled. Exception allowed. A. I had 142 head. The point I desire to make with reference to this assignment is that since the information stated that the hogs in question were received by the defendant in his possession, control and care between the first day of December, 1911, and the 15th day of February, 1912, the State was permitted to change the issue in the case. It was not alleged in the information that the complaining witness had any specific number of hogs on his premises within the dates named, but in substance he turned over said hogs between the dates named, therefore, a vital and positive variance was injected into the issues by the the ruling of the Court which we are now assailing. I will not cite authorities in connection with this assignment, but will repeat at this- time Assignment No. 2, which reads as follows: “When the State rested the defendant movéd the Court as follows: To advise the jury to return a verdict of not guilty in favor of the defendant upon the following ground-s: First, the allegation in- the information being that E. D. Clark turned otf-er to the defendant between the first day of December, 1911, and the 15th day of February, 1912, the hogs described in said information, and the uncontradicted testimony disclosed the fact to be that none of said hogs were either within the dates named or aM any other' time turned over to the defendant, and that there is a fatal variance ' of material character between the allegation an i the proof. Second, that since the information describes the alleged embezzled hogs to have been fifty-five head of red duroc Jersey hogs and the testimony failed to show that said hogs were Jerseys, but showing that they were not full blooded or pure bred red Duroc Jersey hogs, that there is a fatal variance between the allegation and proof. Motion overruled. Exception allowed.” It will be observed from this record that the evidence fails to disclose that the hogs in question were Red Duroc Jersey, but Mr. Clark, the owner, testifies as shown on page 13 hereof as follows: Q. “Do you know of your own knowledge that these hogs that are described in this information were in fact pure bred Duroc Jersey hogs? A. They were not pure bred.” The fact then appearing undisputed that the complaining witness, Clark, never turned a single one of the hogs alleged to have been embezzled over to the defendant, and that with a similar positiveness they were not Red Duroc Jerseys, our contention should have been sustained. The underlying principle which controls this contention was ably discussed and in so far as this jurisdiction is concerned was settled in the case of State v. I-Iam. 21-S. D. 598. It is true that in that case the question was one of failure of description in ownership, but as suggested above, the principle is the same. ' The prosecuting attorney saw fit in his information to charge that these hogs were turned, over to the defendant. He also charged that they were Red Duroc Jerseys and his evidence fails to meet his allegation relative to either charge. This being so, it seems to me that either the Flam case will have to be overruled or our appeal sustained. Loyd v. State, 3 S. W. Rep. 670 (Texas). The writer of this brief wrote the brief in the said Texas case, although he did not try the same in the lower court. The 3rd and 4th assignments of error which appear on page 29 hereof are as follows- and are submitted together: 3. “The question propounded by the jury to the Court as shown at the bottom of page 21 and the top of page 22 of the transcript discloses within and of itself the fact that the jury were impressed with the belief and idea that they were trying a civil action for damages for d;e conversion of the hogs for the embezzlement of which the defendant was charged.” 4. “For the further and additional reason that the entire record- carries with it and manifests the controlling thought that the jury, instead of having in mind the trial of the defendant for the commission of a public offense, were impressed with the idea and thought that the complaining witness, Clark, had an action pending for civil damages, and the verdict itself as rendered under the instructions of the Court emphasizes this contention.” The indexed record herein shows this question to 'have been raised on pages 26-7. These two assignments raise a novel question, and one which I have not been able to find any authority upon. The form of the verdict itself emphasizes the idea that the jury thought it was trying a civil action. Double emphasis is added to this theory wherein the Court charged the jury as shown on page 26 of the recprd as follows: “That you may better understand it when you retire I send out with you two- forms of verdict in writing. One in case you find conviction and one in case you find acquittal. If you find a verdict of .acquittal use that form. If you find the other verdict you will fix -the amount of the value of the property and let the verdict be signed by your foreman and return in to court. Of course, you will have to bring it in to court before you separate.” Assignment. 5. Assignment number five which appears on-page three of the record is as follows: “The evidence failing to disclose that the defendant was over the age of eighteen years, the evidence is insufficient to sustain the verdict herein, and more over, the evidence is insufficient when compared with the information to sustain the verdict.” This discloses that this appellant is being prosecuted under section 626 of the Revised Penal Code of this State, and t-hére is not one scintilla of evidence in the entire record to show his age, and this being so, there is no escape from a reversal on this appeal unless your honors should refuse to follow the decision of the Supreme Court in North Dakota in the case of State v. Collins, based upon the same statute and reported in 61 N. W. Rep. 467. When this entire record (and we have presented it in this brief) is looked to it w-ill be seen that no one ever'saw the de-' fendant take any of the Clark hogs from the farm at Sioux Falls. While he was seen, according to the record, -taking hogs to Sioux Falls, no one ever at any time identified any of them as belonging to the prosecuting witness, Clark. Neither does the record disclose that the defendant at any time ever admitted to any one that he had disposed of any of Clark’s hogs. This being so, is there sufficient evidence in the record to sustain the conviction? Men cannot be convicted upon mere inferences or conjectures, but there must be substantive evidence in order to sustain a verdict. Does it appear in this case? No- demand was ever made upon the defendant for the possession of these hogs nor the refusal to comply therewith. At most nothing more than the merest circumstantial evidence was submitted for the consideration of the jury to the effect that the defendant committed the crime charged in the information, and such being the fact, I claim that there was fundamental error in failing to charge upon circumstantial evidence, and the defendant excepted to the charge for that reason as shown upon page 26 of -the record. See Revine v. State, 3 S. W. Rep. 660; Groom v. State, 3 S. W. Rep. 669. In the last named case the Court of Criminal Appeals of Texas laid the rule to be: “But the liberty of a citizen cannot be taken away by the mere inference of a material fact; especially when such fact, did it exist, could easily be proved.” The evidence shows the -hogs in question were in defendant’s possession between December 1 and 15, 1911, when he and his employer viewed them; that -the defendant removed a large quantity of ■hog's off his employer’s premises between that date and February 15, 1912; and that on the last named date the hogs charged as embezzled- -wer-e not -in- defendant’s possession, nor could he account for their disappearance. The time at which the- defendant received the property with the embezzlement of which he is charged need not, it seems, be stated. 7 Ency. PI. & Prac. 445, citing: State v. Noel, 5 Blackf. (Ind.) 548. It is further claimed, in this Assignment of Error that there is a fatal variance in the description of the property embezzled between the information and the proof. The hogs are designated in the information as “Red Duroc Jersey Hogs,” and Mr. Clark,' the employer, called them “Duroc Jersey Hogs” in his testimony; other witnesses designated them as “red hogs.” There is certainly no such variance herein as could fail to notify the defendant of the particular hogs with the embezzlement of wliich he is charged. Alderman v. State, 57 Ga. 367; Sanders v. State, 86 Ga. 717, 12 S. E. 1058; Commonwealth v. Shaw, 145 Mass., 349; Commonwealth v. Parker, 155 Mass. 526. The precaution of the trial court in asking the jury to fix the value of the property may not have been necessary, inasmuch as the amount stated in the information would control, unless disputed and disproven. The information is a part of the record of which the court will take judicial notice on appeal. This pertains to the value of the property therein alleged to have been embezzled. Harris v. State, 21- Tex. App. 478. As a general rule the value of the article or property is immaterial and not an element of the crime, although the property must not be absolutely valueless. But in jurisdictions where the offense is divided into degrees, or into felony and misdemeanor, according to the value of the property, the value is material, and must be proven in order to show the degree or grade of the offense. 10 Am. & Eng. Ency. Law (2nd. Ed.) 985. The action of the trial court as regards this point was entirely harmless, and could not have misled the jury. The evidence in this case shows that the defendant had worked for his employer from 5 to 6 years up to the time of his arrest; that he was a man of family and lived with his family on the place; that he had full charge of a large farm, with .a number of employees, a large dairy business, and other important affairs; and that he was not an apprentice of his employer. These facts are believed to be sufficient, even if it was necessary for the state -to prove this negative fact as to age, to establish that the defendant was over the age of 18 years at the time of the commission of the offense charged. State v. Ingraham, 136 N.‘ W. Rep. 238. Full and conclusive proof, when a party has the burden of proving a negative, is not required, but even vague proof or such as renders the existence of the negative probable is, in some cases, sufficient to change the burden to the other party. People v. Pease, 27 N. Y. 45. The principle that the burden of proof in criminal cases is on the state relates to the establishment of the corpus delicti, or the defendant’s complicity, but, when he relies on distinct, substantive matter of exemption or immunity, such as nonage, he has the burden of proving it. State v. Arnold, 35 N. C. 184; Ake v. State, 6 Tex. App. 398; Hiozier v. State, 6 Tex. App. 301. When the subject matter of a negative averment in an indictment relates to the respondent personally, or lies peculiarly within his knowledge, the averment' will be taken as true, unless disproved by him. State v. McGlynn, 34 N. HI 422; State v. Keg-gon, 53 N. H. 193 Lambeth v. State, 3 Tenn. Cas. 754; Grillo v. State, 9 Ohio Cir. Ct. R. 394. As a general rule, to make out a case of embezzlement under the statutes, it is necessary to show: (1) That the accused falls within 'one of the classes of persons named, or occupies one of the fiduciary relations specified in the statute; (2) That the thing converted or appropriated is of such a character as to be within the protection of the statute; (3) That it belongs to the master or principal, or someone other -than the accused; (4) That it was in the possession of the accused at the time of the conversion; (5) That a relation of trust or confidence existed, and -that the property came into the possession of the accused, and was held by ■him, for or on account of his employer; (6) That 'his dealing with the property constituted a conversion or appropriation of the same; (7) That there was a fraudulent intent to deprive the owner of his property. 10 Am. & Eng. Ency. Law, 983. Only the two last elements above recited need be considered here; inasmuch, as the other elements have ‘been proven by positive testimony and are not disputed. As to defendant’s dealings with the property entrusted to him, the following facts were shown: That he alone had charge of the hogs and attended them every day; that he made frequent reports to his employer of their condition; that he gave his employer to understand and believe that the hogs in question were all right and1 upon the farm all the time that he had charge of them; that he took away several loads of hogs from the farm during this time and sold some of the hogs to a butcher; that when suddenly informed by his employer that fifty-five -hogs were missing, he said that he could not account for their disappearance; and that he gave no explanation of his conduct in taking hogs away from the farm, selling them, etc. The defendant was charged by his employer with the loss of the hogs on February. 15, 1912; the record shows that he was arrested on the charge of embezzlement on March 6th; and that he was tried on May 15 and 16th. He had plenty of time and opportunity to furnish evidence in explanation of his acts with respect to the hogs; to excuse his failure to produce the hogs when demanded; and to justify his conduct in removing large quantities of hogs from the farm during the time he was in charge thereof. He made no defense. Graves v. U. S., 150 U. S', x 18; State v. Hasledahl, 3 N. D. 36; Riley v. State, 32 Tex. 763; People v. Royce, 106 Cal. 173. When the prosecution has proved the crime charged, the defendant must establish the, facts on which he relies to excuse or justify his acts, when such excuse or justification does not arise out of the evidence against him. Ake v. State, 6 Tex. App. 398, 32 Am. Rep. 586. In embezzlement, as in most other cases, the fraudulent intent is to be inferred from the circumstances. It may be" inferred when there is concealment or efforts to cover up the conversion. 10 Am. &'Fng. Ency. Law, 997. It is -the duty of the court to define the'offense and let the jury ascertain the fact of intent, and .measure the defendant’s guilt accordingly. State v. Harmon, 106 Mo. 635. An instruction following the language of the statute is sufficient on the question of intent. State v. Adams, 108 Mo. 208; People v. Cobler, 108 Cal. 538. A demand of the'hogs was clearly made, and the defendant was unable to account for the hogs. The weight of the authorities, however, is to the effect that a demand need not be made for the money or other property alleged to have been embezzled, in the absence of a statute to the contrary, except under the peculiar circumstances of the particular case. 15 Cyc. 495; United States v. Adams, 2 Dak. 305. As to the effect of an admission by the defendant that he had disposed of any of these hogs, or the .absence of such admission, reference is made to the note in 17.Am. & Eng. Ann. Cas. p. 630. The defendant excepted to the charge of the court for the reason that there was a failure to charge upon circumstantial evidence; but the defendant made no request for any. specific charge upon this subject. The alleged failure of the court to charge particularly as to circumstantial evidence is assigned as error. Circumstantial evidence is sufficient to warrant a conviction for a crime when it establishes the defendant’s guilt beyond a reasonable doubt. 23 Am. & Eng. Ency. Eaw, 951. The instructions of -the court in the present case were full and explicit upon the subject of reasonable doubt. If counsel desire to bring any view of the law of the case before the jury they must .make such view the subject of a request to charge, and failing in this they cannot assign error. II Ency. PI. & Pr. 217-223; People v. Marks, 72 Cal. 46; Hodge v. State, 85 Ind. 561.