Davis v. State , 108 Miss. 710 ( 1914 )

Cook, J.,

delivered the opinion of the court.

Appellant was convicted upon an indictment charging him with the embezzlement of one thousand three hundred and1 eleven dollars, the money of the Bluff City Savings Bank, a corporation of which he was the-assistant cashier:

Before his arraignment the defendant interposed a demurrer to the indictment, upon these grounds, viz.:

“(1) Said indictment fails to aver in proper form,, and 'at proper place, that the money alleged to have been embezzled ‘had come into his possession and had been intrusted to his care by virtue of his employment as such clerk and servant.’

“(2) The indictment fails to properly state the offense of embezzlement.

“(3) For other causes to be shown on hearing.”

Omitting the formal part, the indictment charges:

“That Major Davis, late of the county aforesaid, on the 23d day of March, 1914, in the county aforesaid, being then and there the clerk and servant of the Bluff City Savings Bank, a Mississippi corporation, did then and there, by virtue of his employment as such clerk and servant, have in and under his care and: possession, of the property of the said Bluff City Savings Bank, money in the amount of thirteen hundred and eleven dollars, and of the value of thirteen hundred and eleven dollars, and did afterwards, then an there, without the consent of the said Bluff City Savings Bank, feloniously embezzle the same, and fraudulently and feloniously convert the same to his own use. ’ ’

We think the indictment sufficiently charges the crime of embezzlement under section 1136, Code 1906, and that the court did not err in overruling the demurrer.

Over the objection of defendant, the court permitted a witness, who, it appears, was the cashier of the bank, to testify that the Bluff City Savings Bank was a corporation, and it also unquestionably appears from, the whole record that the banking business in question was conducted under the name of the Bluff City Savings Bank. Where proof of the corporate existence of a bank is required, its mere de facto existence and the performance of the functions of a bank will meet the requirement. Bishop’s New Criminal Procedure, vól. 3, section 456; Wharton’s Criminal Evidence, vol. 1, section 164a; Encyclopedia of Evidence, vol. 3, p. 604.

The defendant pleaded in abatement of the indictment the alleged fact that the presiding judge was not a judge at all. This plea is based upon the averment that the judge was appointed November 13, 1913. during the recess of the senate; that this appointment was, by the governor, transmitted to the senate at the January, 1914 session thereof; and .that the senate finally adjourned without confirming the appointment. Without discussing whether the presiding judge was a de jure judge, or merely a judge de facto, it is sufficient to say that the judge’s title to his office cannot be questioned in this way. The law prescribes a way byk which this question may be properly put in issue and judicially determined. The plea' in abatement was properly overruled.

The evidence offered by the state tended to establish that the alleged embezzlement consisted of a series of embezzlements extending over a considerable period of time. Evidence was offered which, if believed, would have authorized a conviction for more than one separate and distinct embezzlement. The defendant asked the court to compel the state to elect upon which particular item it would ask-the jury to convict. It is the contention’ that the state must stand or fall upon some specific act of conversion. In other words, the evidence tends to show that defendant committed a series of embezzlements. The conversion of any one of the items the state claims he did feloniously embezzle, if true, would render defendant guilty of a distinct and separate crime.

The evidence is to the effect that the defendant acted .as receiving teller or assistant cashier for quite a while, and evidence was offered by the state which would warrant a belief that he embezzled certain sums of money on several separate days, and, this being true, it is insisted the state should have been required! to elect and stand on one of the alleged conversions.' It will be noted, to make the point clear that defendant was not indicted, in terms at least, with having embezzled “a balance of account,” but was charged with the embezzlement of a specific sum of money — one thousand three hundred and eleven dollars.

In Encyclopedia of Evidence, under title “Embezzlement,” it is said:

“It is competant for the court to allow evidence •showing a series of acts in pursuance -of a conspiracy, •as all the acts may together constitute conversion.”

The rule just quoted: seems to be supported by the weight of authority.

“Continuous offenfees generally, if the pleader chooses, may, like those not continuous, be laid as on one day and proved by acts either on one day or many.”

Bishop’s New Criminal Procedure (4th Ed.), section 398.

In the same section of this authority we quote this statement with' reference to the specific crime charged in this indictment, viz.-.

“Embezzlement, when committed by a series of ■connected transactions from day to day, may be alleged as on a single day, and the real facts be shown in -evidence.”

The evidence in the present case tends to show that the defendant was guilty of systematically robbing the bank; that his system consisted of converting money which came into- his hands and falsifying his books to cover up his tracks. This system seems to have gone along for a long time, and the evidence of some -of the alleged embezzlements is stronger than of others ; but in the end the jury were warranted in believing that the sum total of his peculations amounted to the sum named in the indictment.

The supreme court of Oregon, in State v. Reinhart, 26 Or. 466, 38 Pac. 882, gives a clear and logical statement of the rule and the reasons for its- enforcement. We quote:

“The trust and confidence reposed in him (the accused) necessarily affords the amplest opportunity to misappropriate the funds intrusted to'his care, and makes it almost, if not quite, impossible to prove just when and bow it was done, but the ultimate fact of embezzlement is susceptible of direct proof, and that is the act against which the statute is directed. The crime may, as in the case at bar, consist of many acts done in a series of years, and the fact at last be discovered that the employer’s funds have been embezzled, and yet it be impossible for the prosecution to prove the exact’time or manner of each or any separate act of conversion. Iu such case, if it should be compelled to elect and rely for conviction upon any one single act, the .accused, although he might be admittedly guilty ■ of embezzling large sums of money in tbe aggregate, would probably escape conviction. The law does not. afford exemption from just and merited punishment on mere technical grounds, which do not in any way affect the guilt or innocence of the defendant or the merits of the case:”

It seems to us that in the practical-enforcement' of the criminal laws and the punishment of criminals, and especially that class of criminals who usually resort to embezzlement of trust funds, would be made well-nigh impossible, if the state were compelled to rely for conviction upon the proof beyond all reasonable doubt of one of the many acts of a shrewd malefactor. The state might be able to show beyond all peradventure of a doubt that the defendant had for years systematically robbed his employer of many thousands of dollars, but it might be difficult, if not impossible, to pick out one item and prove that to the satisfaction of the jury. In the instant case the state relied for conviction on evidence supporting the theory that defendant had for a long time systematically converted the money of the bank. The result of the evidence is that defendant had embezzled the funds intrusted to his care. Of that there seems to be no room for doubt.

We decline to hold that there was any error in refusing to require the state to pick out one. particular item of the series of embezzlements and to stand on that for conviction.

It is further claimed that the court erred in giving this instruction for the state:

“The court instructs the jury for the state that, if you -believe from the evidence in this case beyond a reasonable doubt that Major Davis was employed as clerk or servant by the Bluff City Savings Bank; and •that by virtue of his employment of such clerk or servant he received into his possession or custody money, and that he feloniously, willfully, and unlawfully embezzled said money to tbe amount of twenty-five dollars, then tbe defendant is guilty as charged, and the jury should so find.”

The contention seems ‘ to be that the representative for the state, in asking this instruction, elected to stand ■on one item. We do not so understand. We assume that the district attorney intended to inform the jury that they could not convict the defendant unless they believed he had embezzled as much as twenty-five ■dollars. In other words, defendant was indicted for a felony, and the district attorney did not ask a conviction for less than a felony. However that may. be, we cannot see that defendant was in any way prejudiced by the instruction, as it gave him more than he was entitled to receive.

There was no error of which defendant can complain in refusing instruction No. 3. There • is considerable doubt as to the propriety of giving this instruction in any ease, but surely the defendant here cannot complain of any failure on the part of counsel to secure for him a clear and forceful statement of the law as to his rights in the premises.

We have given careful consideration to the argument •of counsel and to the points presented in his brief, and! we believe that appellant had a fair and impartial trial, and there is nothing in the record which will justify a reversal.

Affirmed.