The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1913-12-09

testified hat the item had not been
credited to the state. The only objec-
tioA wade TO her testimony was
that INT testimony was not the best
evidence, incompetent as such, ire
levant and immaterial.' There was no
objection made that such a question
was not proper on rebuttal and the
point here made does not seem to
have been specially raised on the
trial. The majority opinion then
states in conclusion hat the allow
ance of such testimony was within
the trial courts discretion, and also
that the objection was not sufficiently
specific in form to raise the point.
This portion of ~the>opinion must have
been written on the assumption,
which 7 think is erroneous, that the
$54.65 item is embraced In he IN
formation, for otherwise it cannot be
justified under any rule or decision
SO far as my knowledge extends.
II have no quarrel with the abstract
propositioss Of law therein stated,
but + do not think they apply in the
case at bar. 1t requires no argument
to show that a citizen ought not to be
which he has neither been charged
with nor convicted of, except
through the failure Of his counse to
i%nterpose technically proper objec-
tons. Even conceding his guilt or
such ~offense, the interests Of the
state do not demand his conviction
in such a manner Quite the con-
trary is true. Courts will not ordin-
ariIy resort to technical rules in or"
der to sustain a conviction, especially
q conviction Of an offense not charged.
The crucial and decisive question on
the point under consideration, there
fore, is as to whether this item of $54.65
is concluded as a portion Of the funds
covered in the information? In an
swering this question we must not
overlook the fact that in employing
three separate counts in the informa-
ton the public prosecutor did not and
could not have intended to charge more
than one offense or criminal TRANSACT
ton, and each count must be constru-
ed as alleging merely different methods
of embezzling the same funds. These
different methods might have been
charged in one count, provided they
were stated in the alternative. This
proviso also applies, where different
counts are employed, by the pleader
seems not to have observed this in
drawing the information in question.
However, this failure is not material
to the point we are here discussing. ~.
A fair test as to whether the. $54.65
item is included in the information isl
whether a conviction acquittal under
such information could be success
prosecution under another informa-
ton specifically charging the embez-
element Of such check. I think it
could not,
. In the majority opinion it seems I'd
be assumed, however, that the charge
in the information Is a general CHARGE
emitting the state to maintain the
same by proof Of the enbezzlement of
any items involved in any Of the
transactions relating to the defend
ants official duties as treasurer. but
I think such assumption Is clearly I'M
authorized. If the pleader had seen fit
to specify and infinitely describe each
Of the -four or five drafts and checks
aggregating the sum Of $60,438.11, 7
apprehend it could not be argued that
such charge would be general so as to-
authorize proof Of the embezzlement
Of any drafts or checks; yet the
pleader just as e~ffectually described
these items ~aggregating $60,43s.11 asI
though he had mentioned them in del
tail, for he saw fit to characterize
them as having been wrongfully turn4
ed over to the Bowbells bank. This
effectually excluded items not thus
misappropriated. and precluded the
state from proving such other items. !
Had the state seen fit to charge il
general terms that defendant embez-|
zled at a. certain time or during a cer-i
tain period, public funds entrusted to-
him as state treasurer, consisting of
moneys, drafts, checks, etc, aggre4
eating a certain sum or a sum in eX-l
cess Of a certain designated amount.t
by feloniously- converting the same td
his own use or to the use Of another,
L am willing to concede that the state
would have a wider latitude in proV-|
ing the charge. and perhaps it might
under such general allegation, proper,
ly have proved the embezzlement Of
the $54.65 Interest item aforesaid. But
where, as in this case, the states att
torney has elected to specifically point
out and identify the particular funds
claimed to have been embeZzled, by.
alleging the precise manner in which
such acts of embezzlement were COM!
mitted, as by appropriating and CON-
Verting the same to the use OF the
First State bank of Bowbells, as
charged in count two, or by loaning
the same to said bank, as charged in
count three. I think the state should
be restricted in it's proof to funds
thus specifically designated and which
it has elected to single out in this
manner. BY such election it seems to-
me that the state has, in legal effect,
as it had the right to do, excluded
other funds or entertainments from
the information. I do not believe that
the authorities cited and relied upon
in the majority opinion, when careful
ly. examined, will be found to hold,
otherwise.
The case of Ker VS.. the people, ITO
ills, 627, cited in the majority opinion
and therein quoted from at length is.
+ think, plainly distinguishable from
the case at bar. That portion of the
quotation after the stars is somewhat
misleading, because it refers not to-
language preceding the stars, but To a.
statutory rule in Ill. (section 80 Of the
criminal code) which is held control
ling.
The foregoing views, inadeauately
expressed, afford sufficient eason
why I think the conviction should nor
be upheld, and I deem it Unnecessary
to express any opinion upon the other
questions presented. =
I am authorized to state that Mr..
Chief Justice Spalding concurs in
these views: