Summary
In Hilbun v. State, 167 Miss. 725, 148 So. 365, 366, this Court stated the following proposition: "On a motion for a new trial based on facts not known during the trial, both the defendant and his attorneys must make affidavit, or testify under oath, that they were ignorant of such facts during the trial.
Summary of this case from Hudson v. StateOpinion
No. 30576.
May 22, 1933. Suggestion of Error Overruled, July 7, 1933.
1. EMBEZZLEMENT. Where indictment charged embezzlement of funds coming into defendant's hands as agent of J.R. Fund, Incorporated, instruction to return verdict of not guilty if evidence failed to show that J.R. Fund was incorporated held properly refused under evidence.
Evidence showed without conflict that fund operated as corporation and was commonly known as such, and that fund was incorporated in manner sufficient to meet requirements of law.
2. CRIMINAL LAW.
Where proof of corporate existence is required, mere de facto existence and performance of functions of corporation meets requirement, and this may be proved by one having actual knowledge of facts, or by general reputation.
3. CRIMINAL LAW.
In embezzlement prosecution, admitting letters written in response to requisitions by defendant for funds held harmless, where material facts shown by letters were proven without contradiction by witnesses.
4. CRIMINAL LAW.
Refusing instructions substantially same as those given held not error.
5. CRIMINAL LAW.
On motion for new trial based on facts not known during trial, both defendant and his attorneys must make affidavit or testify under oath that they were ignorant of facts during trial.
6. CRIMINAL LAW.
New trial because of disqualification of juror held properly refused, where both defendant and his attorneys did not make affidavit or testify under oath to ignorance of fact during trial.
7. CRIMINAL LAW.
That donor of fund which was gift to negro children did not complain of defendant's acts did not prevent prosecution for embezzlement, since donor could not forgive embezzlement.
Appeal from Circuit Court of Hinds County.
Stone Deavours, of Laurel, E.L. Dent, of Collins, M. Ney Williams, of Raymond, S.C. Broome and Chalmers Potter, both of Jackson, for appellant.
The sufficiency of the indictment in this case is challenged by a demurrer. The demurrer was overruled and is one of the assignments of error.
The rule is universal, so far as we have been able to find, that when ownership of embezzled property is charged, it must be charged with all the particularity with which the ownership of property in larceny is charged.
There is no sufficient testimony that Rosenwald Fund is a corporation. Certainly there is no testimony that convinces beyond every reasonable doubt that it is a corporation. It is our contention that without clear proof of the incorporation of Julius Rosenwald Fund, Inc., this prosecution must fail.
The indictment alleges, or attempts to allege, that this money charged to have been embezzled was the property of Rosenwald Fund, Inc., and W.F. Bond, trustee, etc., and as the ownership is alleged in that way, it must be proved in the language as alleged.
E.L. Dent, of Collins, for appellant.
The court erred in overruling appellant's motion for a new trial because he was not tried by an impartial jury in violation of section 26 of the Mississippi Constitution of 1890.
While Cobb, a juror, was staying at his house, McCardle, a witness, states that in the presence of his wife Cobb "made the statement that, in his opinion beyond a doubt, Mr. Bura Hilbun had embezzled some money in regard to his position that he held with the superintendent of education, and he felt like, expressed himself of the opinion that he was the guilty party; that he should be sent up for it."
Mr. Walley, a witness, testified that one day while he and Mr. Cobb were eating dinner in the Lot Cafe at Richton, he asked Mr. Cobb did he think Bura Hilbun was guilty of the charge and he replied, that according to the record and the evidence he was and that if he was ever tried he would be convicted and that he ought to be sent to the penitentiary.
The early case of Cody v. The State, decided in December, 1838, laid down a rule which has been followed to this day, that where a juror has formed and expressed an opinion against the accused, he must reveal this fact on his voir dire examination in order for the court to determine whether or not he is an impartial juror; and a failure to so reveal, constitutes reversible error.
Sam (a slave) v. The State of Mississippi, 31 Miss. 480; Jeffries v. State, 21 So. 526; Sheppric v. State, 31 So. 416; Dennis v. State, 44 So. 825; Jones v. State, 52 So. 791; Martin v. State, 54 So. 148; Hale v. State, 133 So. 211.
Chalmers Potter, of Jackson, for appellant.
The court erred in admitting in evidence certain letters complained of.
The introduction of the letters, which alone out of all of the evidence, tends to show that Hilbun was claiming credit for the erection of the schools when Smith, the author of the letters, himself was not called as a witness, placed upon the witness stand and subjected to cross-examination, constituted a denial of the defendant's constitutional right to be confronted with the witnesses against him.
Cook v. State, 120 P. 1038, 6 Okla. Cr. 477; Harley v. State, 120 P. 1040, 6 Okla. Cr. 197; Hays v. State, 73 Texas Cr. 58; People v. Dow, 64 Mich. 717, 31 N.W. 597, 8 Am. St. Rep. 873; State v. Reidell, 26 Iowa, 430; State v. Harrison, 149 La. 83, 88 So. 696, 697; United States v. Elder, 232 Fed. 267.
One of the fundamental guaranties of life and liberty is found in the Sixth Amendment of the Constitution of the United States, which provides that in all criminal prosecutions the accused shall . . . be confronted with the witnesses against him.
United States v. Elder, 232 Fed. 267.
Earl Brewer, of Jackson, for appellant.
The indictment in the case charges that Hilbun was employed in the capacity of an agent of the Julius Rosenwald Fund, Inc., and W.F. Bond, state superintendent of education, trustee for the Rosenwald Fund, Inc., and as such agent was entrusted to collect, receive and pay out to the negro schools in the state of Mississippi, the sum of four hundred fifty-six thousand five hundred fifty-five dollars and two cents, and charges that as such agent he did collect, receive and take into his possession the said sum of four hundred fifty-six thousand five hundred and fifty-five dollars and two cents. The indictment further charges that he did feloniously embezzle and convert to his own use fifty-three thousand four hundred sixty-eight dollars and thirty-three cents of the goods, chattels and money of the said Rosenwald Fund, Inc., and W.F. Bond, trustee. Then the indictment proceeds further to charge that this money had come into Hilbun's possession by virtue of the employment, and that the money had been legally demanded of him, but he still fails and refuses to pay over the same, contrary to the form of the statute in such cases, etc.
This, of course, was charging two offenses in the same count, and the last offense, they failed to charge, was feloniously done. Of course this is essential to a felony.
Dedeaux v. State, 125 Miss. 326; Hamilton v. State, 35 Miss. 214; Watkins v. State, 60 Miss. 323; Warden v. State, 60 Miss. 638; Delk v. State, 64 Miss. 77, 1 So. 9; Akroyd v. State, 107 Miss. 51, 64 So. 936.
The indictment in this case is fatally defective in that it fails to charge the ownership of the property.
Certainly the defendant was entitled to know whether this was the property of the Rosenwald Fund, Inc., or whether it was Julius Rosenwald's money, or whether it was a partnership fund, owned by Bond, as trustee, and a corporation. In other words, there should have been a specific charge in the indictment, as to who was the owner of the property, and not allege the ownership to be around in different agents and trustees, and corporations, all of which does not exist.
In an indictment for embezzlement you must allege the ownership of the property and prove the ownership as alleged.
Hampton v. State, 99 Miss. 176; Pippin v. State, 88 So. 502.
The first instruction given for the state is as follows: "The court instructs the jury for the state, if you believe from the evidence beyond all reasonable doubt that the defendant, Bura Hilbun, issued a check or checks, or caused to be issued a check or checks, against the account of the Rosenwald Fund, W.F. Bond, superintendent, and deposited the same to his own account or to Bura Hilbun, special account, or caused the same to be so deposited, and paid out on his personal debts from said fund so deposited any amount in excess of twenty-five dollars, then it would be the sworn duty of the jury to find him guilty as charged."
This instruction leaves clear out of the case any criminal intent on the part of the defendant, or any felonious conduct.
Dedeaux v. State, 125 Miss. 326.
The jury should be properly instructed as to the necessity of finding that the act was committed with the required intent.
20 C.J. 491; Hampton v. State, 99 Miss. 176.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
Granting, for the time being, that the admission of the letters into evidence constitute error, the question then arises is it such an error as will require this court to reverse the conviction and remand the case for another trial. The uncontradicted testimony in this record clearly and unmistakeably shows an embezzlement of these funds by the accused. Every fact and circumstance, almost without exception, points unerringly to the guilt of the accused of the charge for which he was tried.
There is no use considering errors committed by the court in the conduct of the trial, unless they be so grave as to deny the defendant the benefit of some fundamental right.
Wexler v. State, 142 So. 501.
Before this court will reverse a case it must be satisfied of two facts: First, there must be error; and, second, the error must be prejudicial to the accused.
Jones v. State, 104 Miss. 871, 61 So. 979; Patterson v. State, 106 Miss. 338, 63 So. 677; House v. State, ___ Miss. 436, 83 So. 611; Calicoat v. State, 131 Miss. 169, 95 So. 318; Lewis v. State, 132 Miss. 200, 96 So. 169; Goins v. State, 155 Miss. 662, 124 So. 785; Comings v. State (Miss.), 142 So. 19; Wexler v. State (Miss.), 142 So. 501; Thomas v. State, 117 Miss. 532, 78 So. 147.
Appellant argues that there was no proof in the record that the Julius Rosenwald Fund was incorporated. Mr. Bond testified that the Julius Rosenwald Fund was incorporated. On cross-examination he testified that he didn't know this matter first hand, but was testifying to it as a matter of common knowledge; that he knew nothing of the actual facts with reference thereto. This is all of the proof in the record with reference to the corporate character of the fund. While I do not wish to be understood as contending that it is necessary for the defendant to show that the fund was not incorporated, yet, I do say, under all the facts of this record, there is nothing tending to show that the fund was of any other character than that testified by Mr. Bond.
Davis v. State, 108 Miss. 710, 67 So. 178.
The existence of a corporation may be proved by a general reputation and a de facto existence of a corporation is all that is necessary to be shown.
People v. Caryl, 3 Park Cr. 326; State v. Thompson, 23 Kan. 338, 33 Am. Rep. 165.
The existence of a corporation may be proved by one who, of his own knowledge, is acquainted with the fact . . . or by general reputation.
Reed v. State, 15 Ohio 217; People v. Barrie, 49 Cal. 342; People v. Davis, 21 Wend. 309; Johnson v. People, 14 Den. 364; People v. Chadwick, 2 Park Cr. 163; Sasse v. State, 13 Ohio, 453; Calkins v. State, 18 Ohio St. 366, 98 Am. Dec. 121; Richberger v. State, 90 Miss. 806, 44 So. 772.
Embezzlement is not a common law crime, but a statutory one, and, therefore, if the indictment substantially charges the crime as defined by the statute, it will be sufficient. The indictment does not have to follow the exact words of the statute, but words synonomous with those employed in the statute are sufficient.
Richberger v. State, 90 Miss. 806.
An indictment for embezzlement does not have to set out an extrinsic fact constituting the offense.
Sanders v. State, 141 Miss. 289, 105 So. 523.
On motion for a new trial based on matters discovered after the verdict, and not known before or during the trial, both the accused and all of his attorneys must make affidavit as to their ignorance of such facts, or they should make such ignorance a matter of record by delivering sworn testimony to that effect. A failure on the part of accused and all of his attorneys to do this deprives the defendant of this ground of error in the Supreme Court as the court has heretofore held in a good many cases that it is not error for the trial court to overrule the motion where these things have not been done.
Grady v. State, 130 So. 117; Salmon v. State, 118 So. 610; Queen v. State, 120 So. 838; Lipscomb v. State, 76 Miss. 223, 25 So. 158; Brown v. State, 60 Miss. 447; Harris v. State, 61 Miss. 304; Long v. State, 141 So. 591.
Where conflicting evidence has been offered as to whether a juror has formed or expressed an opinion as to the guilt of the accused before being accepted on the panel, the decision of the trial court on such conflicting evidence will not be disturbed on appeal.
Queen v. State, 120 So. 838; Schrader v. State, 84 Miss. 593, 36 So. 385; Donahue v. State, 124 Miss. 20, 107 So. 15; Penn v. State, 62 Miss. 450; Helm v. State, 67 Miss. 562, 7 So. 487.
Argued orally by Earl Brewer and Stone Deavours, for appellant, and by W.D. Conn, Jr., for the state.
Appellant was indicted and convicted in the circuit court of Hinds county of the crime of embezzling certain moneys which came into his hands as "agent of the Julius Rosenwald Fund, Incorporated, and W.F. Bond, state superintendent of education, trustee for the Rosenwald Fund, Incorporated." He was sentenced to serve a term of five years in the state penitentiary, from which conviction and sentence he prosecutes this appeal.
The sufficiency of the indictment is challenged. The indictment is in the usual form. Substantially the same indictment has been approved time and again by this court.
The evidence in the case was without conflict; it showed appellant's guilt beyond all reasonable doubt. If this had been a civil action against appellant to recover the funds the state sought to show he had embezzled, and the evidence had been the same as it is in this case, the court would have been justified in directing a verdict for the plaintiff.
There was no error in the court refusing appellant's instruction that, if the evidence failed to show beyond a reasonable doubt that the Julius Rosenwald Fund was incorporated, they should return a verdict of not guilty, regardless of any other fact or circumstance in the case. The evidence showed without conflict that the Fund operated as a corporation, and was commonly known as such. Where proof of corporate existence is required, its mere de facto existence and the performance of the functions of a corporation will meet the requirement, and this may be proven by one who has actual knowledge of such facts, or by general reputation. Davis v. State, 108 Miss. 710, 67 So. 178; Winner Meyer v. Weems, 77 Miss. 662, 27 So. 618; Reed v. State, 15 Ohio, 217; Calkins v. State, 18 Ohio St. 366, 98 Am. Dec. 121; 3 Ency. of Evidence, p. 604. Hampton v. State, 99 Miss. 176, 54 So. 722, relied on by appellant, is not in point. Defendant in that case was indicted for embezzling the funds of the American Express Company, a corporation. The evidence showed without conflict that the American Express Company was not a corporation but a partnership. The court held that the variance was fatal, and the judgment was reversed.
In Richburger v. State, 90 Miss. 806, 44 So. 772, the indictment charged the defendant with embezzling the funds of the "Jonestown Bank," while the evidence showed that they were the funds of the Jonestown Bank of Jonestown, the corporate name. The court held that the variance between the indictment and the proof was immaterial.
Under section 26 of the Constitution, an indictment must be in language and form sufficient to inform the defendant of the nature and cause of the accusation against him. Is there such a difference between the Julius Rosenwald Fund, Incorporated, and the Julius Rosenwald Fund as to mislead a defendant in the preparation of his defense? We do not undertake to answer this question because it is unnecessary. As above shown, the indictment charged the Fund was incorporated, and the uncontradicted proof showed it in a manner sufficient to meet the requirements of the law.
Appellant lays great emphasis on the action of the court in admitting, over his objection, the Smith letters. The evidence showed that these letters were written in response to requisitions by appellant for Rosenwald Funds, and the letters show that on their face. These letters and requisitions by appellant for the funds were part of the records in the office of Mr. Bond, the state superintendent of education, and also of appellant, as supervisor of negro schools. Mr. Bond's testimony, which is uncontradicted, showed that the records in his office touching the handling of the Rosenwald Fund were as much the records of appellant as of himself; that they occupied adjoining offices; and that appellant had exclusive charge of the handling of the Rosenwald Fund and full access to all correspondence in reference thereto. The evidence showed that the correspondence was carried on almost exclusively by appellant and not by Mr. Bond. The Smith letters may have been competent as admissions against interest by appellant; however, we do not decide whether or not that be true under the law. Without hesitation we hold, however, that the admission of these letters was utterly harmless to appellant, for the reason that every material fact which the letters tended to prove was proven without contradiction by Mr. Bond and the officers of the two banks who testified. The letters could not have prejudiced appellant's rights.
The action of the court in giving instructions numbered 1 and 2 for the state is assigned and argued as error. Appellant's criticism of each of these instructions is based on substantially the same ground. We do not think the criticism of these instructions is of sufficient gravity to call for a discussion by the court. It is sufficient to say that they are free of error.
Appellant's criticism of the action of the court in refusing certain instructions is without merit, for the reason that other instructions were given him which were substantially the same in all respects as those refused.
The court committed no error in overruling appellant's motion for a new trial, based upon the ground of the disqualification of the juror Cobb, which appellant claimed was not known to him before the trial. On a motion for a new trial based on facts not known during the trial, both the defendant and his attorneys must made affidavit, or testify under oath, that they were ignorant of such facts during the trial. Grady v. State, 158 Miss. 134, 130 So. 117; Salmon v. State, 151 Miss. 539, 118 So. 610; Queen v. State, 152 Miss. 723, 120 So. 838; Lipscomb v. State, 76 Miss. 223, 25 So. 158; Brown v. State, 60 Miss. 447; Harris v. State, 61 Miss. 304; Long v. State, 163 Miss. 535, 141 So. 591. This requirement of the law was not complied with in the case at bar.
Appellant argues that the donor of the Rosenwald Fund has never raised his voice in criticism of the manner in which he administered the Fund, therefore nobody else had any right to complain; that there could be no embezzling of this Fund because it was a gift to the negro children of this state. The trouble about this argument is that, when appellant embezzled part of this fund, the matter ceased to be a private transaction — the public became interested in it. The state had a right to complain, as it did. The donor of the fund could not, under the law, forgive the embezzlement. It is true that the fund was a donation for the education of the negro children of the state, but the gift was not complete until certain conditions had been brought about by appellant and others co-operating with him. Before these conditions came about, appellant committed the embezzlement. At the time he did so, the donor had not turned loose all hold on the fund; the donation had not been entirely consummated.
We are of the opinion that the other questions argued on behalf of appellant are of so little merit as not to require discussion by the court.
Affirmed.