Prinslow v. State

EjeewiN, J.

Tbe defendant at tbe time of trial was a married man, thirty-seven years of age, born in Pond du Lac -county, Wisconsin, where be bad lived all bis life. He seems to have borne a good reputation, at least up to about tbe time •of tbe alleged offense. Tbe Prinslow & Watson Implement Company named in tbe information was incorporated in July, 1906, August Prinslow being vice-president, J. N. Watson secretary and treasurer, and tbe defendant president, which office be held until January 3, 190Y, at which time be was forced .into voluntary bankruptcy.

1. It is first assigned as error tbat tbe proof does not support tbe charge. Tbe information charged tbe embezzlement of $60 in money, and it is claimed tbat tbe proof was predicated upon tbe receipt by tbe defendant and conversion *134 of wbat was known as a “milk check” for the sum of $68.935. dr'awn by one Peter Stephany to tbe order of one J. P. Biorschbach. This check was delivered to the defendant in payment of $60 upon an indebtedness of the holder of the check to the Prinslow & Watson Implement Company, the defendant paying the balance of the amount of the check, $8.93, to the holder. The defendant then deposited the milk check in the bank and received the value of it, $68.93, so that he did in fact shortly after receipt of the check get into his possession the value of the check, and, if he was guilty of embezzlement by the transaction, he embezzled the money to the amount of $60, proceeds of the check, less the $8.93 paid by him to the holder. Before the check was cashed by the defendant he had an interest in it to the extent of $8.93 and the corporation $60. The defendant deposited the check in his own name with other money, and during the month drew the money out of the bank. He admits that he had the $60' and paid it upon a check for $100.73 drawn by the company, paying the balance of the check, $40.73, out of his own-money. It is clear, we think, that there was no material variance between the information and the proof, because upon the evidence, if any embezzlement were committed, it was under the proof an embezzlement of money. Secor v. State, 118 Wis. 621 , 95 N. W. 942 ; Comm. v. Gateley, 126 Mass. 52 ; People v. Hanaw, 107 Mich. 337 , 65 N. W. 231 .

2. Error is assigned because no demand was shown for the money alleged to have been embezzled. The crime of embezzlement embraces the fraudulent conversion of the property embezzled, and where it is necessary to make a demand in order to establish a conversion a demand is necessary. Sec. 4418, Stats. (1898); Kossakowski v. People, 177 Ill. 563 , 53 N. E. 115 ; Fitzgerald v. State, 50 N. J. Law, 475, 14 Atl. 746 ; State v. Reynolds, 65 N. J. Law, 424, 47 Atl. 644 ; Secor v. State, 118 Wis. 621 , 95 N. W. 942 ; Dix v. State, 89 Wis. 250 , 61 N. W. 760 ; State v. Heiden; 139 *135 Wis. 519 , 121 N. W. 138 . Sec. 4419, Stats. (1898), which makes “the refusal or wilful neglect of any officer or other person” to pay over money 'prima facie evidence of the embezzlement thereof, is relied upon by the plaintiff. This statute manifestly has reference to cases where a demand is necessary, and in that event the statute makes the demand only prima facie evidence of embezzlement, leaving the question of fraudulent conversion and proof respecting embezzlement undisturbed in cases where no demand has been made. It is the fraudulent conversion of the money that constitutes the offense, and that may be proved without a demand. People v. Ward, 134 Cal. 301 , 66 Pac. 372 ; Wallis v. State, 54 Ark. 611 , 16 S. W. 821 .

3. Error is also assigned on refusal of motion for a new trial. Aside from the newly discovered evidence set up in the motion for a new trial, the evidence of embezzlement is exceedingly weak. Practically the only evidence upon the question of fraudulent conversion is the failure to report the collection of the $60, which failure was explained by the defendant. Moreover,' the evidence shows that the defendant was endeavoring to meet the obligation of the company, which at the time, was in a rather straitened financial condition, lie applied the $60 collected on an obligation of the company shortly after he collected it, together with $40.73 of his own money. Besides, had the newly discovered evidence been before the jury, it would at least have strongly tended to prove that at the time of the alleged embezzlement the Prins-low & Watson Implement Company was indebted to the de.fendant on account in a large amount, and under such circumstances, together with the other evidence, it is difficult to see how the jury could have convicted the defendant. We therefore think that upon the whole record the court below should have granted a new trial. Sec. 4719, Stats. (1898), provides that the cireuit court may grant a new trial “for any cause for which by law a new trial may be granted or *136 when it shall appear to tbe court that justice has not been done, and on such terms and conditions- as the court may direct.” This section further provides:

“When an application for a new trial under this section shall be refused a writ of error shall, on the application of •the defendant, be issued from the supreme court to bring such matter before it; and upon such writ the supreme court shall have the power to review the order refusing to grant a new trial and render such judgment thereon as it may deem proper.”

This statute vests in this court a broad and liberal dis-cretion in ordering a new trial when the justice of the case demands. In Lonergan v. State, 111 Wis. 453, 456 , 87 N. W. 455, 456 , this court said:

“In criminal cases, and especially in a prosecution for a capital offense, the defendant has a clear right to have his guilt determined by the court as well as by the jury. ‘If the verdict does not satisfy the conscience of the judge, the prisoner is entitled to a new trial.’ The accused has the right to have ‘the solemn opinion of the judge who tried the cause, after a careful hearing of all that may be alleged against its justice, that it ought to stand.’ Ohms v. State, 49 Wis. 415 , 5 N. W. 827 . Not only has he this right to the solemn judgment of the trial judge, but he has also the right upon writ of «error, if the question is properly presented by the record, to demand the deliberate opinion and judgment of this court upon the question whether his guilt was sufficiently proven.”

Error is assigned upon the charge. As to whether or not there is reversible error in the charge the members of this ■court’ are not agreed. Since the question presented under this head is not likely to arise upon another trial, we shall refrain from discussing it. We are of opinion that justice demands that a new trial should be granted.

By the Oourt. — The judgment is reversed, and the cause remanded for a new trial.