The evening times. [volume] (Grand Forks, N.D.) 1906-1914, 1913-12-10

$64.65 This Is the eXact amount OF
the interest check, Ex. los. sent &c
defendant at his request by the Flax.
ton bank, and 1t is entirely clear thai
this check constitutes the item, fol
the endorsement Of which the jury
found defendant guilty. The record
Enthusiastically demonstrates this to be
a fact. To Justify the verdict, there
fore, the court must be able to say
the charge contained In the informa-
ton. for. of course, 1t is elementary
that Il person cannot legally be con.
victed Of an offensc Of which he has
not been formally accused. The in
quiry therefore. logically arises us
to whether such draft Is embraced
within either count of the inforina.
ton? And this suggests the thought
that inasnuch as conceded!y but one
offense may be charged in such in
formation, each count thereof must
necessarily relate to the same offense
or criminal transaction, merely stat
ing or alleging the same to have been
committed in different forms or meth.
DDS.
Turning to the information We find
that defendant is charged in each
count with having embezzled items
aggregating the u Of s6o.4SS.11,
and turning to the evidences of the
state in chief we find proof OF five
specific items consisting of drafts and
checks aggregating that amount to
the cent. and for which sun. defend
ant on January 3. 1911, held certi-
ticates Of deposit issued by tho Sow
bells bank. and It is strikingly appar-
included therein. Manifestly. the
same could not be included therein
for the obvious reason that there is
no p%retension that such item was cnl-
hezzled by depositing or ioaning the
same or the proceeds thereof to the
Bowbells bank, and the items as
charged in each count, as before stat
ed. must be held to be the same. for
otherwise separate %offenses are al.
legged. Therefore it cannot be cor.
rectly said that count one embraces
the $54.65 item.
Discovered by Accident.
This item was no mentioned nor
heard of in the states main case, nor
until the close Of the trial land on the
cross-eSamination of the defendant on
rebuttal when the same was accident
ly disclosed. 1t is stated in the ma
:iority opinion that there is no merit
in the appellants contention that the
testimony as to the fact that the
$54.66 item was not entered upon the
books was ELECTED i'll rebuttal. 1t is
said: THE order Of proof Is large.
within the control Of the trial court
and his discretion must largely con-
troll. The defendant admitted that he
had received the amount and it is
quite conclusively shown that he re-
ceived it in the course of a series OF
fraudulent transactions. On cross
examination he stated that he did not
know whether it had been accounted
for or not. At the end Of the trial
and on rebuttal the witness. Mrs
Mitchell. testified that the item had
not been credited to the state. The
only objection made to her testimony
was that the testimony was mot the
best evidence. incompetent as such
irrelevant and immateria1.' There
was no objection made that such a
question was not proper on rebuttal
and the point hero made does not
seem to have been specially raised
on the trial"
Not Included in Information.
The majority opinion then states
in conclusion that the allowance OF
such testimony was within the trial
courts discretion. aud also that the
objection was not suficient specif1c In
form to raise the point. This portion
Of the opinion must have been writ.
ten on the assumption, which I think
is erroneous, that the $54.65 item is
embraced in the information, Tor 9th.
erwise it canno be justified under
n rule or decision SO far as my