State v. Ugland

PuGHj J. Defendant was convicted of the crime of grand larceny, and, from the judgment entered on the verdict, he appeals to this court. August io, 1918, and October 12, 19x8, to satisfy creditors and avoid bankruptcy proceedings, the defendant executed certain agreements, whereby for the benefit of his creditors, he assigned and delivered to W. H. Shure, as trustee, all his property, both real and personal (excepting household goods and homestead). The real property consisted of upwards of 13,000 acres of land. Surrounded by lands owned by defendant was a quarter section of land formerly owned by B. G. Johnson, against which was a second mortgage. The mortgagee therein sold the same to the defendant, the assignment running to the bank of which Ugland was then' cashier. The mortgage w!as foreclosed, the land sold, and sheriff’s certificate issued in the name of the bank 'February 2, 1918, and prior to the assignment for the benefit of creditors made t'o Shure. Thereafter and prior to the assignment to Shure, defendant entered into an agreement-' with Johnson whefeby defendant agreed to farm said quarter section of lánd during the farming season of 1918 and to apply one-third of the crop raised and harvested and threshéd from the land, that being Johnson’s share of the crop, after deducting one-third of the threshing bill, to the payment of the sheriff’s certificate aforesaid; the remaining two-thirds to.be defendant’s share of the crop. A crop of flax was raised on the land, and it is a portion of this crop, to wit, 112 bushels thereof, which is the subject of the alleged larceny. After the execution of the trust agreements, the trustee, Shure, hired defendant in August, 1918, and agreed to pay him $100 per month wages, to assist in caring for the crops. During the threshing of the crops on the so-called Johnson land, in the temporary absence of the trustee, Shure, and, without the knowledge of Johnson or the trustee, Shure, defendant directed one of the workmen, who was hauling grain from the threshing machine, to haul a portion of the flax from the machine and place it in a granary situated some distance from the Johnson land, but which granary was situated on land which defendant had theretofore transferred to Shure, as trustee, as aforesaid. One hundred twelve bushels of said flax was placed in said granary, wfhere it was permitted to remain two weeks. The remainder of the flax on the Johnson land was hauled to an elevator at Knox and there placed in a special bin, and report thereof given by de — 845 — fendant to Shure. Shure had given directions that all flax threshed from the land which defendant had transferred to him, including the Johnson quarter, be hauled to an elevator at Knox and placed in special bin. The flax placed in the granary, as aforesaid, to wit, 112 bushels, was thereafter, by direction of defendant, without the knowledge of Shure or Johnson, hauled to the St. Anthony & Dakota Elevator at Pleasant Lake, N. D., by one Weaver, an employe of the trustee, Shure, and there stored in the name of one E. N. Dokken of Knox, N. D., with whom defendant had had business dealings for many years. About six days later it was sold by, or by direction of, the defendant without the knowledge of Shure or Johnson. The draft or check issued in payment therefor was delivered to defendant and by him handed to Dokken with the request that, he indorse the same. Dokken. indorsed it by .writing his name on the back thereof and handed it back to the defendant, who received the money for it. ... The evidence further shows that during absences of the trustee, Shure,, from the farm,, defendant gave instructions to the workmen. ■The grounds'¡and reasons which defendant urges' for a reversal of the judgment are: (a) The evidence is insufficient.to justify the verdict, in that he alleges there was no proof of ownership in the trustee of the flax taken by defendant; and ■ (b) The offense, if any, for which the defendant might have been prosecuted, under the facts in the case, was embezzlement, not larceny. 1. It was the contention of the defendant that the flax in question was the property of Johnson. There is no contention, by either party, that the bank, in whose name the assignment of the mortgage was, and to which the sheriff’s certificate was later issued, had any interest in this flax. Johnson’s right to possession of the flax depends upon the terms of his agreement with defendant, and the question of whether the verdict of the jury is based upon substantial, competent testimony, in turn, rests upon the testimony relative to the agreement between the defendant and Johnson, and, is in brief, as follows: Shure testified as a witness in the case that defendant informed him that he had agreed with Johnson to farm this land during the season of 1918, sow the cultivated land to flax, and in case of redemption from the foreclosure was to get a share of the crop. He further testifies that Johnson was present during all the time this flax was being threshed; that he knew it — 846 — was being threshed; that he knew it was being delivered to the elevator at Knox. The record is silent as to whether Johnson made any objection thereto. The agreement between Johnson and defendant is further evidenced by letter written by defendant to Johnson, care of Attorney Siver Serumgard, in which he says: “Mr. J. E. McCarthy has just showed me your letter of the 7th inst. regarding renting your land foreclosed on by Security Bank of Knox, and I accept your terms stated therein and will apply one-third of the proceeds of the flax crop after payment of one-third of the thresh bill by you on the above foreclosure.” The defendant testified the agreement with Johnson was to the effect that, if there was not sufficient money derived from the one-third of the crop to take up the certificate, then the proceeds of such one-third were to be paid over to Mr. Johnson. Neither the state nor defendant called Johnson as a witness. From this evidence, somewhat conflicting, the jury might reasonably find, as they did find, in arriving at their verdict, that Shure was the owner, as trustee, of the flax in question, or that as such trustee he was entitled to the possession thereof. The question of ownership or right to possession of the flax was fairly submitted to the jury by the instructions of the trial court. In his instructions the court said: “It is the claim of Mr. Ugland that he took this property, not intending to steal it, but that he took, as he claims, in good faith; on behalf of Mr. Johnson, or in order to protect the rights of Mr. Johnson, as he claims; and, in passing on the guilt or innocence of the defendant, you shall carefully consider the claims of the defendant in that respect, as well as all other claims he makes in this lawsuit.” That the question of the ownership or right to possession of this flax was actually considered by the jury is further shown by the request of the jury, after retiring, for further instructions concerning this phase of the case. The jury was brought into court, and, after a colloquy between members thereof and the judge, the following additional instruction was given: “To make the taking larceny, the grain must either have been the property of Mr. Shure in his capacity as trustee, or else in his possession as trustee of the Ugland estate under the farming agreement of — 847 — Ugland with Johnson, and the taking must have been by Mr. Ugland with the intent and purpose in Ugland’s mind to steal it. If Mr. Ugland took it from the Shure’s possession in good faith and with the intent to protect Johnson’s interest, he would not be guilty of larceny, elc.” No complaint is made with reference to these instructions. The finding of the jury is binding on this court when based upon substantial, competent evidence that, in any reasonable view thereof which the jury has the right to take, justifies the verdict. State v. Cray, 31 N. D. 67, 153 N. W. 425; State v. Wheeler, 38 N. D. 456, 165 N. W. 574; State v. Burcham (N. D.) 176 N. W. 657; State v. Papernak (S. D.) 181 N. W. 955; Fink v. State, 173 Wis. 264, 180 N. W. 812. 2. The defendant insists, secondly, that if the evidence shows the commission of a crime by him in connection with this flax, is that of embezzlement, not larceny, and for that reason the judgment should be reversed and he be discharged. Section 9913, C. L. 1913, defines “larceny” as “the taking of personal property accomplished by fraud or stealth, with intent to deprive the owner thereof.” Section 9929, C. L., defines “embezzlement” as “the fraudulent appropriation of property by a person to whom it has been intrusted.” The distinction between these two crimes is at once apparent, and relates chiefly to.the manner of acquiring the possession of the property stolen or appropriated. In larceny there must appear the trespass and the appropriation of the property; while in embezzlement there is a fraudulent conversion after its possession has been intrusted to the accused, or after it has lawfully come into the possession of the accused by virtue of his employment with the owner thereof. It is the essence of the crime of embezzlement that the misappropriation be of property intrusted to the defendant. The word “intrusted” means something more than naked possession or custody of or access to the property appropriated. Webster’s New Int. Die. defines it: To confer a trust upon; to deliver to another something in trust, or to commit something to another with a certain confidence regarding his care, use or disposal of it. See, also, State v. Collins, 4 N. D. 433, 61 N. W. 467; People v. Ehle, 273 Ill. 424, 112 N. E. 970; Colip v. State, 153 Ind. 584, 55 N. E. 740, 74 Am. St. Rep. 322; People v. Dougherty, 143 Cal. 593, 77 Pac. 466. Something more than mere physical access or opportunity to ap — 848 — proach or take the property is intended by the statute in order to make the appropriation embezzlement. There must be a relation of trust and confidence reposed in the recipient of the thing appropriated, and it must be by virtue of such relation of trust and confidence that the accused has access to or possession or control of the property embezzled. “There is a well-settled distinction in law between the possession of goods and the mere charge or custody and this distinction plays an important part in the law of larceny. The owner of goods may deliver them to another in such manner or under such circumstances as to give the other the bare cusody without changing the possession in the eye of the law. The possession in such case remains constructively in the owner, and if the person having the custody converts the goods to his own use, with felonious intent, he takes them from the constructive possession of the owner, and commits a trespass and larceny.” Clark and Marshall on the law of Crimes, pp. 451, 455; Chanock v. United States, 267 Fed. 612, 50 App. D. C. 54, 11 A. L. R. 799, and note to the case; note to 888 Am. St. Rep. 566; 17 R. C. L. 10; R. C. D. 9; R. C. L. 1273; 25 Cyc. 20; 20 C. J. 418; 13 A. L. R. 314, note. Defendant insists that he was agent of the trustee, and that as such he was intrusted with, or had in his control, the crops aforesaid, for the use of the trustee, and that therefore, under § 9933, C. L., the crime committed, if a crime was committed, was embezzlement, not larceny. ■ In our opinion the evidence in this case does not establish the proposition that the flax in question, or, indeed, any of the crops raised on the land transferred by the defendant to Shure, as trustee, was placed in the “possession” of the defendant and “intrusted” to him by Shure, within the legal contemplation of those terms. In other words, we are of the opinion that there is sufficient legal evidence from which the jury could reasonably find that the defendant did take, steal, and carry away said flax, by fraud and stealth, with the intent then and there to deprive the owner thereof. As we read the record, the uncontradicted evidence is that Shure took possession of all the real estate and personal property formerly belonging to defendant and wife, including the Johnson land. The defendant was employed by the trustee to assist in harvesting, caring for, and threshing of the grain, and delivery thereof to the elevator designated by the trustee. The defendant, it is true, looked up prices, elevators, and had the elevator buy portions of the grain; but this was all done under the direction of the trustee, and as — 849 — the servant of the trustee. When grain was delivered to the elevator, storage tickets were issued in the name of Shure; when sales were made, the checks or drafts given by the elevator agent in payment of such sales were made out payable to Shure; the 112 bushels of flax taken and sold by defendant when threshed was placed in Shure’s granary; said flax was in his possession while in the granary; it did not leave his possession until the defendant took it in the manner hereinbefore recited. Shure did not, by any act of his, divest himself of such possesion. Following the well-established principles of law herein set forth, it must be held that the defendant in taking and carrying away said flax, to an elevator other than that designated by the master, in storing it in the name of Dokken, and selling and disposing of it stealthily, committed a trespass, and he was properly charged with the larceny of the grain. The judgment of the district court is affirmed. Guace, C. J., and'Christianson, and BirdzUll, JJ., concur.