
    State of Iowa, Appellee, v. J. C. Folger, Appellant.
    CRIMINAL LAW: Former Jeopardy — Embezzlements by’ Agent and 1 Bailee. An aequittal on an indictment which charges the defendant, as agent, with the embezzlement of the proceeds of grain delivered to him (See. 13031, Code of 1924) is no bar to an indictment which charges the defendant as l>aUee with the embezzlement of the same grain. (Sec. 13030, Code of 1924.) ■ •
    CRIMINAL LAW: Former Jeopardy — General Test. General principle 2 refcognized that an , acquittal is a bar to a subsequent prosecution if proof of the subsequent allegations would have sustained a conviction under the indictment under which acquittal was had; otherwise not.
    CRIMINAL LAW: Trial — Province of Jury — Question of Fact. Con-3 dieting testimony relative to the question whether a bailee charged with embezzlement understood that the delivery of the property constituted a sale, to him or a'bailment necessarily presents a jury question. .
    CRIMINAL LAW: Trial — Instructions—Custom as Defense — Sale (?) or 4 Bailment (?) Instructions reviewed, and held to fully and adequately present to the jury :in a prosecution for embezzlement by a bailee the effect pf a usage or custom in the warehousing business to sell the bailment; also to fully and adequately present the question whether the’ transaction in question was a bailment or a sale.
    CRIMINAL LAW: Instructions — Ratification of Wrongful Act. ' In-5 structions reviewed, relative to the effect to be given to a ratification by a bailor of the’wrongful act of the bailee in selling tlie-bailment, and held to contain nothing of which the accused could complain. ■ •
    EMBEZZLEMENT: Intent — Inapplicable Instruction. Ah instruction 6 that “the law presumes a man to intend the reasonable and natural consequences of his act deliberately and intentionally done,” given in a prosecution. for embezzlement by a bailee, is not .necessarily erroneous. Instructions reviewed as a whole, and held unobjectionable.
    CRIMINAL LAW: Trial — Improper Reception of Evidence — Curing Er-7 ror. Error in receiving in evidence the improper conclusions of a' witness may be .cured by striking the same from the record and by specifically cautioning the jurors to wholly disregard the same. (See Book of Anno., Yol. 1, Sec. 11493, Anno. 606 et'seq.)
    
    Headnote 1: 16 C. J. p. 267 (Ánno.) .Headnote 2: 16 C. J. pp. 265, 266. Headnote 3: 20 C. J. p. 488. Headnote 4: 20 O. J. p. 490. Headnote’5: 20 C. J. p.’ 491. Headnote 6: 16 C. J. p. 985; 20 C. 3. pp. 490, 491. Headnote 7: 17 C. J. p. 326.
    Headnote 2: 8 R. C. L. pp. 143, 144. Headnote 7: 26 R. C. L. 1035.
    
      Appeal from Sioux District Court. — C. C. Bradley, Judge.
    October 26, 1926.
    Rehearing Denied December 17, 1927.
    The defendant was convicted of .the crime of embezzlement, and sentenced to the penitentiary at Fort Madison for an inde-' terminate term of five years. From this judgment he appeals.—
    
      Affirmed.
    
    
      C. W. Pitts and Van Oosterhoilt,é 'Iíolyn, for appellant.
    
      Ben J. Gibson, Attorney-general, Neill Garrett, Assistant Attorney-general, Charles B. Hoeven, County Attorney, and T. E. Diamond, for. appellee. ■ • • •
   Stevens, J.

I. The indictment in this case charges- the defendant with the commission of the crime of larceny by the embezzlement of 2,791 bushels of oats, the property-of one Martin Boever, of the value of' $781.48, committed on or about April or May,. 1922. This indictment was returned.by the grand jury of Sioux County March 26, 1925. A -former indictment charging the defendant with the crime of larceny by the embezzlement of $7,842.80, as agent and bailee of. the-said Boev.er, committed about June, 1923, was returned against him January 13, 1925. Both indictments grow out of the same original transaction, but are not based upon the same specific act.

At the conclusion of the testimony upon the first trial, the jury, by peremptory direction of the court, returned a‘ verdict of “not guilty.” The acquittal of the offense charged in that indictment is pleaded as a bar to the prosecution upon the present indictment. It was the claim of the State, upon the trial of the first indictment, that, in April and May, 1922, Martin Boever delivered 2,791 bushels of oats to the defendant, who then owned an elevator, and was engaged in the grain business at Alton, Iowa, in Sioux County,, in pursuance of an oral contract for the storage thereof; that, in June, .1923, Boever authorized and directed the defendant to sell the oats at an agreed price, and to ship, the same to market; and that, although repeated demand was made therefor, the defendant did not pay the proceeds of the sale to Boever, but continually put him off, by saying that he had not yet received the returns from the shipment, and that, when he did, h(e. would j)ay him the .amount due. $500 was subsequently paid by the defendant to Boever, which he credited upon the purchase price of a large quantity of com sold and delivered to the defendant at or about the same time as the oats. The -facts developed, upon the trial of the first indictment showed that the oats- had in-fact been-sold by the defendant in September, 1922, and shortly thereafter shipped with other grain to Council -Bluffs, and the proceeds - received therefrom-used by the defendant in his business. The .claim of the - defendant upon the trial of the first -indictment, which is also urged in this ease, was tliat the oats were delivered -to, and received by, the defendant , from Boever, and placed in the-elevator-with other grain,-without any contract or-arrangement-for storage,- and in pursuance, of - a trade custom or usage prevailing in that community, and well -known • and - understood by the parties,. that the defendant had the right to sell the -grain at any time he wanted-to, and to settle -with Boever on the basis of the weights, -for which he held scale -tickets, and of the market price, at-the-time of.settlement.- -It was, and is, also argued by the-defendant that the transaction was, in.legal effect, a sale, and-not a bailment.- : • ' -- ; ■-• .. ■ - -

. . The- two .indictments .-are based upon different sections - of . the Code. The first indictment was based upon -Section 13031 of the Code Of' 1924, which -provides that

“If any-* * * agent •* ®.of any private person * * *. except persons under-the age of sixteen years,- * * ■* -in any .manner receives or collects money or-other property for the use of and belonging to another, embezzles or fraudulently converts to his own use, or takes and secretes with intent to- embezzle or convert .to his own .use, without the consent of * * * -the owner of the money or property-collected or-received, *- is guilty- of lar- ■ ceny.-” . - ■ .

The present indictment is based upon Section 13030 of the Code of 1924, which provides-that: . - -

■ - ‘Whoever embezzles. or-fraudulently converts to his own ■use, or-secretes-with-intent to embezzle or fraudulently convert to his own use, * * * goods, or property, delivered to him * * * which may be the subject of larceny, shall bé guilty of larceny and punished-accordingly.” . ■

' The- offenses defined by these sections of the Code are -wholly-separate' 'and distinct, and neither is included in the other. It will be noted that -the first indictment charged the -defendant with the larceny of money -in his capacity: as “agent and bailee.” During the trial the defendant moved the court to require the State to elect whether it would prosecute the defendant as bailee or as agent. - Without any ruling by the court, the State ¡elected- to prosecute the defendant upon the offense •defined by Section 13031. 'It was conceded by all parties upon both trials that whatever money, if any, the defendant fraudulently Converted- to his own use- was the proceeds of the sale of the oats, together with the-proceeds-of the sale of a quantity of com previously delivered to him by Boever. Except for the •use of the word “bailee” in the indictment, coupled with the word “agent,” as above stated, there is nothing therein constituting a charge of the embezzlement of anything but money. The - allegations of the ■ indictment were wholly insufficient to charge the larceny of thé oats by embezzlement. The conviction -of the defendant of the offense charged in that indictment was sought by the. State upon the theory that, when Boever authorized and directed him in June to' sell and ship the oats at an agreed price and account for the proceeds, the relation of principal and agent was thereby created, and that whatever the defendant thereafter did was in his capacity as agent. When, however, it was conclusively shown upon the trial that the oats had been sold and delivered.to the purchaser by the defendant long prior to .June, 1923,- and the proceeds of such sale received and . appropriated by the defendant and used in the conduct of his business, there was nothing that could, have been done under the supposed agency. No grain was sold, or money received or converted by the defendant, as. the agent of-Boever. Therefore, at'the conclusion of the trial, the: defendant moved for.a directed verdict, which motion the court sustained, upon the ground that .the evidence was insufficient, for the reasons indicated, to convict the defendant of the crime charged, in the indictment.

The evidence was substantially the' same upon the trial of both cases. This, however, is not the test for determining whether a former- acquittal of -the offense charged in another indictment is a bar to the prosecution of another separate and distinct offense. The test -recognized by- the authorities generally is' whether or not, ■ if the ¡ allegations -of the' second indictment had been proved - under the first, there could have -been a conviction;' or, as stated by Bishop -in his work on Criminal Law, Section 1052, Paragraph 2:

“The test- is whether,- if what is set o-ut in the second indictment had been proved under the first, there could have been a conviction. When there could, the -second cannot be maintained; when there could not, it can be.”

See, also, State v. Ingalls, 98 Iowa 728; State v. Price, 127 Iowa 301; State v. McAninch, 172 Iowa 96; State v. Broderick, 191 Iowa 717. In the absence of statute, it is not necessary, in order to sustain a plea of former acquittal, that it be shown that the offenses charged- in the separate- indictments are the same. State v. Price, supra.

With the foregoing test in mind,- can it be said that the evidence offered upon, the first trial, which resulted-in the acquittal of the defendant,.necessarily works the. same result in the present instance? : The gist of the offense charged in the first indictment was the conversion or -embezzlement, of money by the defendant, which he received as the agent of Boever. The gist of the offense charged in-the present indictment is the fraudulent conversion or embezzlement of a quantity of oats which he received from Boever as bailee. Instead of its being possible to prove both offenses by the same evidence, proof of the offense charged in the first indictment would negative guilt under the second. In other words, proof of agency- was indispensable upon the trial of the first indictment, and proof of another -element of the transaction that is a bailment was indispensable upon the trial of the present indictment. Not only are the offenses separate and distinct, but evidence which will sustain one would justify, if not require, an acquittal of the other. It must, of dourse, be conceded that, if the defendant could have satisfied the jury; upon either trial, that -the original transaction constituted a sale of the oats- to' the- defendant, or gave him implied authority to sell5 the same -whenever he desired; an-acquittal would necessarily havé followed. - The mere fact, however, that the delivery of the grain to the defendant was the single transaction out of which the separate offenses indirectly arise, is not conclusive, one-way or the other. In some cases, the acquittal of one accused of a distinct offense will - bar a subsequent prosecution for another - offense resulting from the commission of the same act. For example, the acquittal of a father of the crime of rape committed upon a daughter under the age of eon- ' sent will bar a prosecution-for incest. State v. Jacobson, 197 Iowa 547. .Likewise, the acquittal of one-charged with the unlawful.manufacture- or sale'of -intoxicating liquors is a bar to .a further prosecution for the- same offense, within the period of the statute of limitations, involved .in the first, indictment. State v. Reinhard, 202 Iowa 168. The same' is true-in-certain other cases.-. State v. Waterman, 87 Iowa 255; State v. Sampson, 157 Iowa 257; State v. Speedlmg, 199 Iowa 1218. It is' clear, there- . fore, that the .plea-of .former- jeopardy, is not available to the .defendant under the present indictment. The court properly so instructed the jury. State v. Jamison, 104 Iowa 343.

II, Another 'ground, of defendant’s'motion for a directed verdict was that the evidence affirmatively disclosed that the contract under which-the oats were delivered to him was, a conditional sale,, vesting title in him, and that -he had the legal right to market the oats.whenever he. desired, and-to-settle with Boever on the basis of the market price ■ whenever. -settlement was demanded by, him..-:This ground of the motion..ignores. the .testimohy of Boever to the effect that, he delivered-, the oats to the defendant under, an express oral contract-for.-the storage thereof; that the defendant stated that he would protect Boever against loss by .insuring- the-grain; that he subquently-and repeatedly falsely stated to B.oever that he shipped the • grain in June, 1923-, as directed by him, and that he.could not settle with him until he received the proceeds' of the sale, repeatedly: promising- payment as. soon as -they were received: The instructions- clearly informed the jury that, if the oats were delivered to the defendant under an arrangement, and without any other contract, by which defendant understood that -he was not: obligated to return them to Boever on- demand, but -might later pay him -the market price, therefor'.on any-date Boever .might: select, the-transaction did not constitute a bailment,- and the defendant should' be ■acquitted. . , • . . , '

Perhaps .reference should here be made to the testimony of various-.witnesses, for- the defendant, tending to show .the- existence in' the -.vicinity, of Alton of a custom or- usage among grain .dealers,-by-which grain is received from customers and deposited in elevators with other grain, to-be sold by the dealer whenever- he sees- fit, settlement .to. be made therefor at the. market price on-any date selected-.by the seller.- Concerning this custom, the court instructed the jury, in substance, that parties entering into a contract are supposed to have reference .to-known usages-and customs which affect:the business or subject-matter -thereof, unless such presumption is excluded-by the terms of the agreement-.itself, and that such,existing custom or usage -becomes a part of every contract to -which it is applicable, although not mentioned or- alluded to in the negotiations or in the contract; that, however, such--custom or usage Avill not prevail against the express terms of a contract inconsistent therewith ; that such custom or usage,- to be legal,- and construed as part of the contract, must be so well settled and so universally-acted upon-as to raise - a :fair'presumption that it was knoAvn to both of the contracting parties and -that they contracted in reference to and in conformity therewith. T-he-court-also-defined a-bailment, and carefully submitted every'theory of-the defense to the jury except that of -a former acquittal, which was a-.question of law,’for the court to determine. Many-cases are cited -by counsel touching this and other questions discussed, but the law is too well settled in this state to require the citation thereof.- That-the contract, upon.the theory of.the State,-'based upon the testimony of Boever, was a bailment,.is perfectly clear. Sexton & Abbott v. Graham, 53 Iowa 181; Nelson v. Brown, Doty & Co., 53 Iowa 555; Arthur v. Chicago, R. I. & P. R. Co., 61 Iowa 648.

It is also well settled in this state-that,- where grain, is deposited. AAdth a .warehouseman with the- understanding that- he. is to ship and sell it on his oavu account, and that--he will pay the depositor the market price at a -time fixed by him, or turn over a like quality and quantity- of the grain, it does not. constitute a bailment, brd a sale. Johnston v. Browne, 37 Iowa 200; Barnes Bros. v. McCrea & Co., 75 Iowa 267.

: The instructions fully and fairly submitted the defendant’s theory that the transaction was. a sale,- or that it gave implied authority to the defendant to sell the grain without any further action ;or consent upon the part of. Boever. • By these • instructions, the defendant .was given the-full benefit .of: the evidence introduced by him to prove the -custom -and- usage upon which he relied, ..

Ill, One other ground of the motion requires consideration: that is, that it'was conclusively established by the evidence that Boever1, subsequent to the sale of the oats, ratified and confirmed ^Ie sa^e> claiming to be the- owner of the proceeds and demanding the same from the defendant. On this point the court instructed the jury that if, with knowledge that the oats had been wrongfully sold by the defendant, Boever elected to ratify, affirm, or acquiesce in the sale; such ratification would relate back to the time-of such sale, and its legal effect would be the same as if the sale had been originally authorized by him. But, if the claim to the proceeds was made by Boever under the belief that the oats had been sold in conformity to his authorization and direction, such claim would not constitute a ratification of the previous' unauthorized sale. _ The court further instructed the jury that, if Boever subsequently acquired knowledge that his oats had been wrongfully sold, he might still assert his claim for damages for such sale, and stich assertion would not constitute a ratification • of the defendant’s wrongful act. The instruction was full, definite, and explicit, and in all particulars favorable to the defendant.

Manifestly, none of the grounds of the motion for a directed verdict were good. The foregoing matters were all again raised by the defendant in a motion to discharge the defendant notwithstanding the verdict, in a motion for a new trial, and most of them by exceptions to the instructions and to the refusal of the court to give numerous instructions requested by him. All of the instructions requested by the defendant involved matters covered by what we have already said. The exception to but a single paragraph of the court’s charge is argued by counsel.

■ IN. The court also instructed the jury that:

“A -fraudulent intent can seldom be proved by direct evidence; and in the absence of direct evidence, the intent with which an- act is done is generally inferred or presumed from all the facts and circumstances attending the doing of the act in question, as disclosed by the evidence. The law presumes a man to intend the reasonable' and natural consequences of his acts deliberately and intentionally done.”

The foregoing language of the instruction, which is but a part of the paragraph, was excepted to on the ground that the last sentence is misleading, and that the result of his act in sell-ing the grain was not intended, nor was it the probable consequence thereof, but that same was due to the financial depression which followed. The exception misconceives the meaning of the instruction. It is true that a man must be presumed to intend the reasonable and natural consequences .of his act. The sentence must be read in connection with the instruction, as a whole. It does not possess the objectionable features found in the instruction held fatally defective in State v. Roby, 194 Iowa 1032, or in State v. Carmean, 126 Iowa 291. In a later paragraph of the same instruction the court fully explained to the jury that, in determining the intent with which the defendant sold the oats, it should consider all the evidence, his understanding of the arrangement under which he received them, whether he believed in good faith that he was thereby given the legal right to sell the same, his conversations with Boever relating to the transaction, and his acts and conduct, so far as disclosed by the evidence, together with all the facts and circumstances shown upon the trial bearing thereon. The instruction, as a whole, was entirely fair, and sufficiently favorable to the defendant.

V. During the progress of the trial, the court permitted Boever to testify to certain conclusions, in answer to interrogatories propounded to him, over the defendant’s objections. Later, and before argument to the jury, the court on its own motion stated to the jury that he believed the ruling was erroneous, and called particular attention to each question and answer, stating that proper objection was made thereto, and that he was then convinced that the witness should not have been permitted to testify to the conclusions expressed, and withdrew the answers from the jury, and cautioned them to disregard the same. There was nothing inherently prejudicial in the answers, although we think the objections should have been sustained. The jury must have understood that the evidence was to be disregarded and given no weight in arriving at a verdict. Any error in the admission of this testimony was completely cured by its subsequent withdrawal by the court.

VI. It is also urged by counsel that, upon' the whole case, the evidence is insufficient to sustain the verdict. The evidence on many of the vital points in the case is in direct conflict, but it is not the province of'this court to pass upon its weight or the credibility of the witnesses.. These are peculiarly the functions Of the -jury. The argument of eonnsel for appellant on the facts is persuasive, but tbe question was clearly for the- jury.

Some-other questions are insistently discussed by counsel. All have been given careful consideration. We find, no error in the record, and the judgment of the court below is — Affirmed,.

:;De Graff, C. J., and Faville and Vermilion, JJ., concur.  