THE STATE OF NEVADA, Respondent, v. DONALD A. ROTHROCK, Appellant
State v. Rothrock
Ducker, J.: I concpr in the order.
THE STATE OF NEVADA, Respondent, v. DONALD A. ROTHROCK, Appellant.
[No. 2483]
THE STATE OF NEVADA, Respondent, v. DONALD A. ROTHROCK, Appellant.
[200 Pac. 525]
1. Indictment and Information — Objection to Indictment Waived by Not Raisins It as Prescribed.
Under Rev. Laws, 7090, 7091, defendant, charged with embezzlement, waived the objection that the names oí many of the witnesses examined before the grand jury were not indorsed on the indictment by not raising such objection by ' motion to set aside the indictment at the time prescribed by statute.
2. Grand Jury — Indictment Not Vitiated by Publication of Vote on Question of Its Finding.
Indictment for embezzlement was not vitiated, under Rev. Laws, 0374, 7012, 7013, 7031, because a newspaper of general circulation in the county published the vote on the question of the finding of such indictment, the grand jury having made a report of the proceedings before it, including its action on the charges against defendant, wherein it voted unanimously to indict him; the report being a matter of public record.
3. Criminal Law — Instruction that Certain Acts Might Be Considered Prima-Facie Evidence of Guilt Not Prejudicial Error,
Under the statute authorizing the jury to consider certain acts as prima-facie evidence of the guilt of one charged with crime, in a prosecution for embezzlement, the trial court committed no prejudicial error in giving instructions that certain acts covered by the statute might be considered by the jury as prima-facie evidence of defendant’s guilt; such statutes being valid.
4. Embezzlement — Corporation’s Treasurer, who Filled in Blank Check for More than Authorized and Appropriated the Proceeds, Guilty of Embezzlement, and Not Larceny.
The secretary and treasurer of a corporation, who received a blank check from its president, with instructions to fill in the check and pay the company’s debt of $12, but instead filled in the check for $400, using $64 of the proceeds to pay two debts of the company, and appropriating the rest, was guilty of embezzlement, and not of larceny of a check.
5. Criminal Law — Instruction Dealing with Weight To Be Given Testimony of Particular Witness Properly Refused.
In a prosecution for embezzlement, the trial court properly refused to give an instruction dealing with the weight to be given the testimony of a particular witness. A general instruction, applying to all witnesses alike, is the correct Xiractice.
C. Criminal Law — Telegram Admissible after Answering Telegram Admitted.
In a prosecution of a corporation’s treasurer for embezzlement of the proceeds of a blank check given him by the president and filled in by him for more than authorized, a telegram, sent jointly by defendant and others, and tending to negative the theory of flight because disclosing defendant’s whereabouts, held admissible in evidence as against the objection of lack of authenticity, after the answering telegram had been admitted in evidence.
7. Criminal Law — Exclusion of Telegram, Negativing Flight, Prejudicial.
In the prosecution of a corporation’s treasurer for embezzlement of the proceeds of a blank check given him by the president and filled in by him for more than authorized, the exclusion of a telegram sent jointly by defendant and others, tending to negative the theory of defendant’s flight, because disclosing his whereabouts, held prejudicial error.
8. Embezzlement — Instruction Specifying Facts of Offense Proper.
In a prosecution for embezzlement of the proceeds of a blank check filled out by defendant treasurer for more than authorized, instruction that it must appear from the evidence that defendant appropriated the money in question as alleged in the indictment, or $50 or more of it, to his own use, with intent to steal, etc., held proper.
Appeal from Second Judicial District Court, Washoe County; C. J. McFadden, Judge.
Donald A. Rothrock was convicted of embezzlement, and from the judgment, and an order denying his motion for a new trial, he appeals.
Judgment reversed, and case remanded for further proceedings. Petition for rehearing denied.
W. D. Jones,.Geo. B. Thatcher, Eugene L. Williams, J. M. Frame, James T. Boyd, and Edward T. Patrick, for Appellant:
Not having been found according to law, the indictment should have been, on defendant’s motion, set aside. The names of many witnesses before the grand jury were not indorsed on the indictment. Rev. Laws, 7045; State v. Hamilton, 13 Nev. 388; Rev. Laws, 7012, 7013, 7031. Irreparable injury was done appellant by the- overruling of his motion, and compelling him to go to trial. State v. Hamilton, supra; State v. Benney, 64 Me. 284; 1 Greenleaf on Evidence, sec. 252.
Appellant did not appropriate any part of the money, as charged in the indictment. “It is necessary to prove that he had * * * fraudulently converted to his own use the money alleged to have been embezzled.” People v. Wyman, 102 Cal. 555; Stallings v. State, 63 S. W. 127; State v. Marco, 50 Pac. 799; State v. Weber, 31 Nev. 387; People v. Parkhurst, 12 N. W. 894; People v. Gallagher, 33 Pac. 893; McAleer v. State, 64 N. W. 358.
There was fatal error in respect to the variance between the allegation of the indictment and the proof admitted. “Proof of the embezzlement or larceny of a check will not support a charge of embezzlement or larceny of money.” People v. Mesores, 116 Pac. 679; State v. Hanley, 70 Conn. 265; Carr v. State, 104 Ala. 43; State v. Mispagel, 207 Mo. 557; Lancaster v. State, 9 Tex. App. 393; State v. Harcombe, 48 Utah, 89; State-v. Castleton, 255 Mo. 201; 7 Ency. PI. & Pr. 451. “Where an offense charged and that proven are essentially different in their ingredients the variance is fatal, because in criminal proceedings it is necessary that the defendant be fully apprised of the specific charge which he is to answer.” 22 Ency. PI. & Pr. 568; Huntsman v. State, 12 Tex. App. 619; People v. Dumar, 106 N. Y. 502; Commonwealth v. Simpson, 50 Mass. 138; State v. Finnegan, 127 Iowa, 286; 2 Wharton, Crim. Law, 1314; Ex Parte Dela, 25 Nev. 352.
The motives and intent of appellant were not fraudulent. It was prejudicial error to exclude the telegram offered by defendant. Any evidence tending to throw light upon the question of either motive or intent is admissible. 1 Greenleaf on Evidence, secs. 108, 110; People v. Gallaud, 55 Mich. 628; People v. Hurst, 62 Mich. 276; State v. Summers, 141 N. C. 841; State v. . Eastman, 62 Kan. 353; State v. Pittarn, 32 Wash. 137; Robinson v. State, 77 Am. St. Rep. 392; People v. Tread-well, 69 Cal. 226; People v. Gray, 66 Cal. 271.
There is no evidence of a felonious conversion, nor is there any evidence that a demand was ever made upon the défendant for the money, which he refused to comply with. State v. Weber, 31 Nev. 385; People v. Royce, 37 Pac. 630; 39 Pac. 524; People v. Wyman, supra; People v. Page, 116 Cal. 386; Kribs v. People, 82 111. 425; People v. Pollack, 4 N. Y. S. 297; Robinson v. State, 35 S. E. 57; Fitzgerald v. State, 14 Atl. 746; State v. Reynolds, 47 Atl. 644; State v. Hunnicut, 34 Ark. 562; State v. Flourney, 16 South. 938; Blake v. State, 160 Pac. 30.
It was error to instruct the jury that certain facts should be prima-facie evidence of guilt of embezzlement. State v. Pappas, 39 Nev. 40; Kirk v. Territory, 10 Okla. 803; Abbott’s Criminal Brief, sec. 785; People v. Baker, 96 N. Y. 340; People v. Plath, 100 N. Y. 590; Cummings v. Missouri, 4 Wall. 328; State v. Beswick, 13 R. I. 211; Wynehamer v. People, 13 N. Y. 446; People v. Lyon, 27 Hun, 180.
L. B. Fowler, Attorney-General; Robert Richards, Deputy Attorney-General; L. D. Summerfield, District Attorney, and W. M. Kearney, Assistant District Attorney, for Respondent:
■ Documentary evidence does not fall within the meaning of a witness, under the statute. Rev. Laws, 7045; 1 Greenleaf on Evidence, secs. 98, 328; Bouvier’s Law Diet. 3475. Even if it were necessary to list the documentary evidence upon an indictment, the objections in the case at bar come too late. By going to trial, and objecting only after the documents were offered in evidence, defendant waived his rights, if any he had, in this respect. People v. Lopez, 26 Cal. 113.
There was no error in the refusal of the court- to set aside the indictment on the ground that the grand jury had made public the vote in finding the indictment. Commonwealth v. Meade, 12 Gray, 167; People v. Young, 31 Cal. 564.
Whether or not there has been a conversion to one’s own use in a particular instance depends upon the intent of the taker. This, as in other criminal cases, is to be determined by the jury from the attending facts and circumstances. State v. Baumhager, 28 Minn. 226; 20 C. J. 433, 9 R..C. L. 1279. “It is not necessary for the state to show what becomes of the money after it is embezzled.” 9 R. C. L. 1276; Eggleston v. State, 129 Ala. 80.
“If the check or other evidence of indebtedness was merely the means by wdiich the money alleged to have been embezzled was procured, there is no variance.” 20 C. J. 478; People v. Crane, 34 Cal. App. 599; State v. Brooks, 85 Iowa, 366; Richburger v. State, 90 Miss. 806; State v. McCawley, 180 S. W. 869; Territory v. Hale, 13 N. M. 181; State v. Chapin, 74 Or. 346; Powell v. State, 198 S. W. 317; State v. Hopkins, 56 Vt. 250; Prinslow v. State, 140 Wis. 131.
“A telegram, like a letter, is not admissible in the absence of proof of its authenticity, either in proof of the handwriting, where the original message is offered, or by other evidence of its genuineness.” 22 C. J. 907. It is necessary that the identity of the sender be established before a telegram is admitted in evidence. “There was no evidence of authorship by the insured, or that she was the sender of the message.” Ikenberry v. Insurance Co., 134 Minn. 432.
There was no necessity for a demand for an accounting. “It is only when other evidence to prove a fraudulent conversion is not available that the proof of a demand is necessary.” 9 R. C. L. 1276. There is no statute requiring a demand as a condition precedent to a prosecution for embezzlement. State v. Weber, 31 Nev. 385.
No demand is required where the accused has resorted to flight. People v. Fisher, 16 Cal. App. 271; Kossakows.ki v. People, 117 111. 563; Agar v. State, 176 Ind. 234; People v. Carter, 122 Mich. 668; State v. Knowles, 185 Mo. 141; State v. Reynolds, 65 N. J. L. 424.
Neither an intention to make good the amount embezzled, at the time of the conversion, nor an actual replacement of the amount after conversion, will constitute a defense. 20 C. J. 437, 455; 9 R. C. L. 1298; State v. Trolson, 21 Nev. 419.
There was no error in the instructions. The whole charge must be taken together and considered as an entirety. If anything essential, omitted from an instruction or portion of the charge, be found in another instruction, the omission will not be fatal. State v. Pritchard, 15 Nev. 74; Solen v. Railway Co., 13 Nev. 106; Allison v. Hagen, 12 Nev. 38; State v. Raymond, 11 Nev. 98; State v. Donovan, 10 Nev. 36; Capíes v. Railway Co., 6 Nev. 265.
The statutory provisions making certain facts primafacie evidence of the existence of the main fact are not unconstitutional. 8 R. C. L. 177. “The legislature * * * may declare what shall be prima-facie evidence, and may regulate the burden of proof.” It is within the province of the legislature to prescribe rules of evidence. State v. Thomas, 144 Ala. 77; Wooten v. State, 24 Fla. 335; Meadowcroft v. People, 163 111. 56; State v. Beach, 147 Ind. 74; Commonwealth v. Anselvich, 186 Mass. 376; People v. Cannon, 139 N. Y. 32; State v. Barrett, 138 N. C. 630. “The law presumes that such was defendant’s intention, and throws upon him the burden of showing facts in mitigation, justification, or excuse.” State v. Pappas, 39 Nev. 40.
It was for the jury to determine, as a matter of fact, whether or not there was a flight on the part of appellant. Bird v. U. S., 187 TJ. S. 186; Campbell v. U. S., 221 Fed. 186; Ware v. State, 12 Ala. 101; People v. Easton, 148 Cal. 50; Hudson v. State, 101 Ga. 520; State v. Matheson, 120 Iowa, 440; State v. Harrington, 86 U. S. 713; State v. Stentz, 33 Wash. 444.
“There must be an end to the giving of instructions, and the tendency of courts is to give too many.” State v. Ward, 19 Nev. 297.
The crime of embezzlement was clearly estáblished and by evidence more ample than that adduced in most of the adjudicated cases on the subject. No error was committed by the lower court, at least of the character necessary to reverse the judgment. “No judgment shall be set aside, or new trial granted, * * * unless * * * it shall appear that the error complained of has resulted in a miscarriage of justice, or has actually prejudiced the defendant in respect to a substantial right.” Rev: Laws, 7469.
By the Court,
Coleman, J.:
The defendant was indicted upon a charge of embezzlement, and, having been convicted at the trial, appeals from the order denying his motion for a new trial, and from the judgment.
The charging part of the indictment is in the following language:
"That said defendant, on the 28th day of May, A. D. 1920, or thereabouts, and before the finding of this indictment, at and within the county of Washoe, State of Nevada, committed thé crime of embezzlement. That at the time and place aforesaid the above-named defendant was secretary and treasurer of Greek Hills Trimetal Company, Inc., a corporation then and there organized and existing under and by virtue of the laws of the State of Nevada, and by reason of. his being secretary and treasurer of said Greek Hills Trimetal Company, Inc., was then and there intrusted with and had given unto his possession by said Greek Hills Trimetal Company, Inc., the owner thereof, four hundred ($400) dollars, lawful money of the United States of America, for the sole and only purpose of holding and keeping the said four hundred ($400) dollars in his possession, as said secretary and treasurer of said Greek Hills Trimetal Company, Inc., and expending the same, as said Secretary and treasurer of said Greek Hills Trimetal Company, Inc., in payment of claims against the said Greek Hills Trimetal Company, Inc., when duly and regularly authorized and allowed by said Greek Hills Trimetal Company, Inc., and that said defendant did then and there, while intrusted by said Greek Hills Trimetal Company, Inc., as secretary and treasurer of said Greek Hills Trimetal Company, Inc., with the said four hundred ($400) dollars as aforesaid, and while in the possession thereof as aforesaid, for the uses and purposes aforesaid, wilfully, unlawfully, fraudulently, and feloniously convert the said four hundred ($400) dollars, lawful money of the United States of America, to his own use, with the intent then and there to steal the same and to defraud the said Greek Hills Trimetal Company, Inc., the owner thereof, of the same."
It is admitted that the defendant was the treasurer of the company mentioned on May 28, 1920, and that on that day he had in his possession a blank check of said company, duly signed by the president, with instructions to ascertain the amount of a certain indebtedness of the company, which was $12, to fill in the amount of .said indebtedness as the sum for which said check should be made payable, to sign the same as treasurer, and then to pay said indebtedness, but that instead of doing as instructed he made the check payable to himself for. $400, got the money thereon, and paid two claims against the company, aggregating $64. Further details will appear in the opinion.
The first contention made in behalf of the defendant is that the names of many of the witnesses who were examined before the grand jury were not indorsed upon the indictment, as required by section 7045, Revised Laws 1912. Section 7090 of the Revised Laws provides that such an objection must be made by motion to set aside the indictment. This was not done. Section 7091 provides where such objection is not made in the manner mentioned, a defendant is precluded from thereafter urging the point. People v. Lopez, 26 Cal. 113. The defendant waived the point by not raising it at the time prescribed by the statute.
It is next contended that the trial court erred in
refusing to set aside the indictment upon the ground that the grand jury which returned it caused to be published in a daily newspaper, of general circulation in the county in which the defendant was indicted, the vote upon the question of the finding of said indictment. In support of this contention our attention is directed to sections 6374, 7012, 7013, and 7031 of the Revised Laws. The facts are that the grand jury made a report of the proceedings had before it, among which was its action upon the charges against this defendant, wherein it voted unanimously to indict him. This report was a matter of public record in the clerk's office, and the newspaper published it. The provisions of our statutes relative to keeping secret the proceedings' before the grand j ury were not enacted for the benefit of those who were investigated and indicted by the grand jury, but for the protection of the public. This idea is clearly set forth by the Supreme Court of Massachusetts in Commonwealth v. Mead, 12 Gray, 167, 71 Am. Dec. 741, where it is said:
"The reasons on which the sanction of secrecy which the common law gives to proceedings before grand juries is founded are said in the books to be threefold. One is that the utmost freedom of disclosure of alleged crimes and offenses by prosecutors may be secured. A second is that perjury and subornation of perjury may be prevented by withholding the knowledge of facts testified to before the grand jury, which, if known, it would be for the interest of the accused or their confederates to attempt to disprove by procuring false testimony. The third is to conceal the fact that an indictment is found against a party, in order to avoid the danger that he may escape and elude arrest upon it, before the presentment is made. But when these purposes .are accomplished, the necessity and expediency of retaining the seal of secrecy are at an end. 'Cessante ratione, cessat regula.' "
Dwelling upon the same question, it is said by the Supreme Court of California in People v. Young, 31 Cal. 564:
"If the witnesses violated the obligation of secrecy-imposed by thenl by the two hundred and seventeenth section, the defendant could not take advantage of it. The obligation is due and owing to the public, and not to the witness, and therefore its violation cannot be an occasion of offense to him."
We fully approve of the views expressed in the opinions mentioned.
It is contended that the court committed prejudicial error in giving two instructions to the effect that certain facts might be considered by the jury as primafacie evidence of the guilt of the defendant. These instructions were given pursuant to statute, authorizing the j ury to consider certain acts as prima-facie evidence of the guilt of one charged with crime. In support of the contention, our attention is -directed to the case of State v. Beswick, 13 R. I. 211, 43 Am. Rep. 26; and State v. Liquors and Vessels, 80 Me. 57, 12 Atl. 794. These decisions sustain the contention, but we are of the opinion that the contrary rule is supported by both the great weight of authority and by sound reasoning. In R. C. L., vol. 8, p. 177, it is said:
"In many jurisdictions, statutes have been enacted which provide that when certain facts have been proved they shall be prima-facie evidence of the existence of the main fact in question. The validity of such acts has been questioned many times, but usually they have been held to be a proper exercise of legislative power. The inference of the existence of the main fact because of the existence of the fact actually proved, must not be merely and purely arbitrary, or wholly unreasonable, unnatural, or extraordinary. But so long as the legislature, in prescribing rules of evidence, in either civil or criminal cases, leaves a party fair opportunity to make his defense and to submit all the facts to the jury, to be weighed on evidence legitimately bearing upon them, it is difficult to perceive how its acts can be assailed upon constitutional grounds."
The same rule is stated in 12 C. J. 823, in the following language:
"Likewise, the legislature has power to give to evidence greater effect than it possesses at common law, and in both civil and criminal proceedings it may declare what shall be prima-facie evidence, and may regulate the burden of proof."
See, also, State v. Thomas, 144 Ala. 77, 40 South. 271, 2 L. R. A. (N. S.) 1011, 113 Am. St. Rep. 17, 6 Ann. Cas. 747; Wooten v. State, 24 Fla. 335, 5 South. 39,1 L. R. A. 819; Meadowcroft v. People, 163 Ill. 56, 45 N. E. 991, 35 L. R. A. 176, 54 Am. St. Rep. 447; State v. Beach, 147 Ind. 74, 43 N. E. 949, 46 N. E. 145, 36 L. R. A. 179; Commonwealth v. Anselvich, 186 Mass. 376, 71 N. E. 790, 104 Am. St. Rep. 590; People v. Cannon, 139 N. Y. 32, 34 N. E. 759, 36 Am. St. Rep. 668; State v. Barrett, 138 N. C. 630, 50 S. E. 506, 1 L. R. A. (N. S.) 626.
While this question has never been before us in a criminal case, it was presented in Garson v. Steamboat Canal Co., 43 Nev. 298, 185 Pac. 801, 1119, where we held that no one has a vested right in a rule of evidence, and that the legislature has the undoubted right to prescribe such rules of evidence as may best promote justice. There is nothing in the case of State v. Pappas, 39 Nev. 40, 152 Pac. 571, in conflict with the view stated.
It is said that there is a variance between the offense charged and the proof, in that the defendant committed larceny of a check and not embezzlement of money, if he committed any crime. We are not prepared to approve the contention. The blank check came into the hands of the defendant because of his position as secretary and treasurer of the company, and it was through the signing of the check in his official capacity that he was enabled to get the $400. The money, when it got into his possession, was clearly the property of the company. Upon no theory could it be said to have been the property of the defendant. A person occupying a position of confidence and trust cannot use that position for the purpose of obtaining possession of money, and after succeeding deny that he obtained it because thereof. We think the question was settled by this court in Ex Parte Ricord, 11 Nev. 287, which grew out of an embezzlement charge against a clerk in a railroad office, who, having been permitted to make collections of certain demands due the railroad, collected others which he embezzled. It was urged in his behalf that he was not guilty of embezzlement, for the reason that he had no authority to collect the money embezzled. The court brushed the contention aside with the observation that it did not lie in his mouth to say that he had no authority to collect the money. A case identical to the one at bar, except that the misuse of the money was not controverted therein, is that of People v. Gallagher, 100 Cal. 466, 35 Pac. 80, in which the court said:
"Bishop, in his work on Criminal Law, in commenting upon Rex v. Snowley, 4 Car. & P. 390, uses the following language: 'That when in reason, whenever a man claims to be a servant while getting into his possession by force of his claim the property to be embezzled, he should be held to be such on his trial for embezzlement. Why should not the rule of estoppel known throughout the entire civil department of our jurisdiction apply in the criminal? If it is applied here, then it settles the question; for by it, when a man has received a thing from another under a claim of agency, he cannot turn around and tell the principal, asking for the thing, "Sir, I was not your agent in taking it, but a deceiver and a scoundrel." ' Bishop, Crim. Law (3d ed.) sec. 367. In the seventh edition of the same work, like language, with some additions, is used at section 364 of volume 2. In Ex Parte Hedley, 31 Cal. 109, a case involving the same question, and in many respects similar to the one at bar, this court quoted, with marked approval, the foregoing extract from Bishop, and in an opinion regarded as conclusive of the question here held that if an agent obtains the money of his principal in the capacity of agent, but in a manner not authorized, and converts the same to his own use, with intent, etc., it is money received 'in the course of his employment' as agent."
See, also, Smith v. State, 53 Tex. Cr. R. 117, 109 S. W. 118, 17 L. R. A. (N. S.) 531, and note, 15 Ann. Cas. 435.
It is contended that the court erred in refusing to give a requested instruction to the effect that if the defendant "properly accounted" for the money he should be found not guilty. We fail to see any force in this contention. Whether the defendant properly accounted for the money was not a question of fact, but a question of law. The fact is that he deposited the money to the company's account about June 30, after his return, and after the crime had been committed, if any was committed. If he had committed a crime his remorse, repentance and restoration of the money could not wipe it out. 20 C. J. 455; 9 R. C. L. 1298.
It is urged that the court erred in refusing to give an instruction dealing with the weight to be given the testimony of a particular witness. A general instruction was given, informing the jury as to .the rule whereby they were to arrive at an estimate of the credibility of the various witnesses who testified in the case. It is unwise for the court to single out a particular witness, and give an instruction as to the tests to be applied by the jury in determining the weight to be given his evidence. To give a general instruction applying to all witnesses alike.is the correct practice. The court did not err in refusing to give the particular instruction.
It is contended that the court erred in refusing to admit in evidence a telegram from Omaha, Neb., of date June 5, sent to Connelly jointly by Mr. Young, manager of the company, one Davies, in some way connected with it, and the defendant. This telegram was offered in evidence after Connelly had admitted on the witness stand that he had received it. An objection was made by the state to its admission, upon the ground of lack of authenticity. Upon the record as it then stood, we are not prepared to say that the- court erred; but thereafter a telegram of June 6, signed by Connelly, directed to the senders of the telegram of June 5, and in reply thereto was offered in evidence. After this telegram had been admitted in evidence, the defendant renewed his offer of the telegram of June 5, which offer was again rejected by the court. We are of the opinion that the court erred in its ruling upon this last offer. Connelly having acted upon the telegram of June 5 as genuine, there was no occasion for showing its authenticity. 22 C. J. 908. The court having erred, we must determine whether the error was prejudicial. Whether or not there is evidence in the case upon which to base an instruction as to flight is doubtful. But, assuming that there is, unless flight is shown so clearly that it cannot be said that by any possibility could the defendant have been prejudiced, it is our duty to reverse the judgment, unless his guilt is so satisfactorily shown that it can be said that the jury could have reached no other conclusion.
The evidence shows that the defendant, though authorized to fill out the check for only $12, on May 28 filled it out for $400, payable to himself, and procured that amount on it, paying therefrom two claims against the company, aggregating $64. It is also shown that on June 2 the president of the company made an appointment with the defendant to meet him the next day to draw checks upon the company's bank account to pay the men who had been employed upon the property of the company. That night the defendant was married, and some time during the night, or the following day, left Reno, and was next heard from at Omaha, Neb., from which place the'telegram of June 5 was sent, which was followed on the two following days by letters signed by Young, Davies, and the defendant.
In determining whether or not such a strong showing of flight was made out as to justify us in saying that the defendant was not prejudiced by the rejection of the offer of the telegram, we are justified in considering the evidence in support of the proof of the crime charged; for, if the evidence of that is questionable, we must assume that the ruling was prejudicial. In considering this question, we must also keep in mind that it was the theory of the defense that the defendant went away on business. Connelly, the president of the company, testified that after the defendant had gone away he examined the bank account and found it several hundred dollars short. Neither he nor any other witness testified that the defendant had been directed to pay out for the company the balance of the $400, or that a demand had been made therefor. The state having alleged that the defendant had come into possession of the $400 lawfully, and having urged that he should be estopped from saying that he had not, it would seem that the state should be estopped from relying upon any evidence to the contrary to make out or sustain its case. Having held that the defendant is so estopped, we must also hold that no evidence of the shortage of the bank account can be considered by us in determining whether the defendant was guilty of embezzlement. For the purposes of this case, the defendant came into the possession of the money rightfully, and the shortage of the bank account is more than immaterial.
Let us assume that the cheek did not enter into the case at all. Suppose $400 in cash had been deposited with the defendant by the company, to be paid out when directed; that he paid out in fact on behalf of the company $64; that he had not been directed to pay out any further sum; that no demand had been made upon him for the balance; that he had failed to keep an appointment to draw checks upon the bank account of the company to pay its debts, but instead had left for Omaha, or some unstated destination — could it be said that there would be any evidence whatsoever upon which to base an instruction on flight? We think not.
The condition of the bank account being immaterial, the failure of the defendant to keep the appointment to sign the checks cannot be attributed, in law, to its shortage. The question is, then: What evidence is there in the record to show embezzlement? The money having been deposited with defendant for an indefinite time for a special purpose, and he not having been directed to use it for the purpose deposited, and no demand having been made upon him therefor, there must have been some evidence of his use of the money in a manner prohibited by the statute. There is no direct evidence of that fact, and a reliance to sustain that contention must rest largely upon the circumstance to which we have alluded, namely, the failure to keep the appointment. But, assuming that facts as recited did justify submitting the question to a jury, can we say that the defendant was not prej udiced by the court's rej ecting the telegram offered in evidence?
Flight must follow the commission of a crime. "Flight" signifies something more than a mere going away. It embodies the idea of going away with a consciousness of guilt, for the purpose of avoiding arrest. 16 C. J. 551, 552. In determining whether or not such was the purpose of the defendant, in view of the fact that it was the theory of the defense that he had gone away on account of business, he was entitled to have the jury consider the telegram of June 5, disclosing his whereabouts. The j ury might have been convinced that the defendant's disclosure of his whereabouts by telegram so soon after going away indicated that he had no thought of concealing himself for the purpose of avoiding arrest. Under all the circumstances, the defendant was entitled to have the jury consider the telegram in question, and the refusal of the court to admit it in evidence was prejudicial error, warranting a reversal of the judgment. In this connection, the query arises, in view of the fact that it was the theory of the defense that the defendant went away on business, as to whether the court should not have covered that theory in its instruction. State v. Marshall, 115 Mo. 383, 22 S. W. 452.
8. It is also asserted that the court erred in instructing the jury as follows:
"The court instructs the jury that it must appear from the evidence that the defendant appropriated the money in question, as alleged in the indictment, or $50 or more of it, to his own use, with the intent to steal the same and to defraud the Greek Hills Trimetal Company thereof, and those facts must be proved beyond a reasonable doubt. Therefore, if you believe from the evidence, beyond a reasonable doubt, that the defendant, Donald A. Rothrock, was entrusted with and had given into his possession, the sum of money alleged in the indictment, and that it was so entrusted to him and given into his possession, as the secretary and treasurer of the Greek Hills Trimetal' Company, for the sole and only purpose of holding and keeping the same, as said secretary and treasurer, in payment of claims against the said Greek Hills Trimetal Company when duly and regularly authorized and. alio wed, and that, instead of holding and keeping and expending the same as he should have done, he appropriated it, or $50 or more of it, to his own use, with the intent to steal the same and to defraud the Greek Hills Trimetal Company thereof, that fact would constitute the crime of embezzlement as defined by the statute, and you should convict the defendant. The offense of embezzlement consists of two things: The act of taking money, and the intention with which it is taken."
It is said that this instruction fails to cover a material element of embezzlement, namely, a conversion of the money with a fraudulent intent, and that the concluding sentence is contradictory of the rest of the instruction, and hence tended to confuse the jury, and constituted reversible error, under the rule laid down in State v. Scott, 37 Nev. 420, 142 Pac. 1053. We simply wish to say that, if the first contention is good, there can be nothing to the second; but, if the first contention is without merit, we think the second is equally so. There may be a taking of property with the intention of appropriating it to the taker's own use. On the other hand, there may be an embezzlement without the element of intent entering into it. State v. Trolson, 21 Nev. 419, 32 Pac. 930.
Some other questions are discussed in the brief of appellant, but we think they are substantially disposed of by what we have said.
For the reasons pointed out, it is ordered that the judgment be reversed, and the case remanded for such further proceedings as may be deemed proper.
Ducker, J.: I concpr in the order.