State v. Kimball

Citations

• 23 Del. 146
• 7 Penne. 146
• 77 A. 412
• 1909 Del. LEXIS 4

Syllabus

<p>Criminal Law—Embezzlement of Money, Of Check—Plea-Former Acquittal—Demurrer—Jeopardy—Evidence— Money Wrongfully Received—Deposit of Check.</p> <p>1. The sufficiency of the bar of the plea of former acquittal, is to be determined by ascertaining whether the defendant could legally have been convicted upon the previous indictment; for if he could not, then his life or liberty was not in jeopardy under that prosecution and the plea would be no bar to his trial under a second indictment.</p> <p>2. Money unlawfully taken or received cannot be the subject of embezzlment. To support an indictment for the embezzlement of money, or any other thing, the facts must show that it was lawfully taken or received by the accused.</p> <p>3. The first indictment charged the defendant with the embezzlement of money, the second with the embezzlement of a check. The evidence in the former trial showed that the check, the subject of the second indictment, was endorsed by the defendant, deposited in a certain Trust Company in violation of his agreement, and the money thereon paid to the defendant. Held, that the money was unlawfully received by the defendant on said check, and that he could not, therefore, be legally convicted of the embezzlement; that the plea of former acquittal constituted no bar to the second indictment—the defendant not having been in jeopardy under the first indictment.</p>