State v. New

Berry, J.

Section 23, ch. 95, Gen. St., enacts that * * * “if any clerk, agent, or servant, '* * * of any copartnership, except apprentices and other persons under the age of sixteen years, embezzles or fraudulently converts to his own use, •* * * without consent of his employer, * * * any money or property of another, which has come into his possession, or is under his care by virtue of such employment, he shall be deemed to have committed larceny.”

1. By the indictment in this case the defendant is “ accused,” by the grand jury, “of the crime of larceny, committed as follows,” the indictment thereupon proceeding to state facts bringing the defendant within the statute above quoted. The effect of this statute is to make the *79 acts therein specified larceny, and the accusation of the indictment is, therefore, strictly correct. (Com. v. Simpson, 9 Met. 138 . It was, of course, necessary to set out the acts constituting the species of larceny of which defendant was found by the grand jury to be guilty, as was done in this instance.

2. The verdict was as follows: (Title.) “The jury in this case find the defendant, Thomas New, guilty. We also find the value of the property embezzled to be forty dollars.” The verdict is entirely consistent and proper. It finds the defendant guilty of larceny, as charged in the indictment, and that the amount of the money embezzled, as charged in the indictment — i. e., so as to constitute larceny — is $40.00.

3. The indictment alleged that the embezzlement and conversion with which defendant was charged were committed in Hennepin county. The evidence showed that he received the money from his employer in that county, and that he never handed it over or accounted for it, as it was his duty to do, but appropriated it to his own use without authority. Where he made the appropriation did not affirmatively appear. Without now determining where the offence would, in law, have been deemed to have been committed, if it had appeared that the unlawful appropriation had been made in Ramsey county, it is sufficient at this time to say that when it is considered that there was no evidence that defendant carried the money out of Hennepin county, or made the unlawful appropriation of it in any other place, the evidence of its receipt by defendant in that county, and of his unexplained failure to hand it over or account for it, is at least prima facie evidence that the offence charged was committed in Hennepin county. The impracticability of any other rule, in prosecutions for an offence of this kind, will be obvious upon a moment’s reflection.

It follows, also, that defendant’s request that the jury should be instructed that it is not sufficient that the money was received by defendant in Hennepin county, ‘‘ but the *80 proof must show the conversion in Hennepin county,” was properly refused. The instruction requested would naturally convey to the jury the erroneous idea that some affirmative proof of conversion was required in addition to proof of the receipt of the money in Hennepin county, whereas, if, as in this case, there was no evidence that defendant carried the money out of Hennepin county, or .made the unlawful appropriation of it in any other place, the negative evidence of his unex23lained failure to hand it over or account for it would be'prima facie sufficient iqion the question of venue, to which question the instruction referred.

4. The indictment charges the commission of the offence iqion August 20, 1873. Under this allegation of time it was conrpetent to show the commission of the offence upon July 25, 1873, under the common law rule (ado2ited in Gen. St. ch. 108, § 7,) that allegations of time need not, in general, be jn’oved as laid. So far as this rule permits proof of an offence committed before the time stated in the indictment, Gen. St. ch. 108, § 23, which allows proof of embezzlement committed within six months after such time, does not affect or profess to affect it.

5. The point that the only evidence of a conversion of the money is the confession of defendant, and that this, by Gen. St. ch. 73, § 93, is insufficient to support his conviction, overlooks the evidence (outside of the confession) showing defendant’s receipt of the money, and his failure to hand over or account for the same.

6. There is no inconsistency between the sixth instruction, given at defendant’s request, and the subsequent instruction given by the court upon its own motion. The former refers to a case of mere delay on the part of a servant to deliver money entrusted to him for delivery; the latter, to an “actual embezzlement and fraudulent appro2>riation’’ of such money. To constitute a conversion, a demand and refusal might be necessary in the former case, but not in the latter. Gom. v. GuMen, 111 Mass. 435 .

Judgment affirmed.