State v. Probert

Citations

• 19 N.M. 13
• 140 P. 1108

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. An indictment for embezzlement under Section 1122,. C. L. 1897, in tbe exact language of tbe statute is sufficiently specific to require no amplification. It is only where the-terms of a statute are so general as to require specification of detail in order to identify a given transaction with' which it is sought to charge a defendant, that the allegations of' an indictment must be expanded beyond the statutory terms. To allege that a person has fraudulently embezzled and converted to his own use the money of another, is to allege that he so did with intent to defraud. To do an act fraudulently is to do it with intent to cheat and defraud.</p> <p>P. 16'.</p> <p>2. A motion for a continuance which fails to allege that the affiant believes in the truth of the facts to he testified to by the absent witness, as .required by Section 2986, C. L. 1897, is properly overruled.</p> <p>P. Iff</p> <p>3. The title to 'money which is contracted to be deposited by the vendee to the credit of one tenant in common, is properly laid in such tenant in common, notwithstanding his co-tenant may be entitled to his share of the fund upon an accounting between them.</p> <p>P. 17</p> <p>4. Where a vendee covenants with a vendor to deposit in a bank to his credit a sum of money pending an investigation of title to the real estate, and attempts to perform-his contract by drawing his check in favor of the bank for the amount, which check and the proceeds thereof are embezzled by the president of the'bank,' and are never so deposited, and where the check is not treated by the parties; as a present deposit of the amount, the title to the check and the proceeds thereof remain the property of the drawer of the check, and an allegation of title to the funds in the vendor is not sustained. P. 21</p>