Doxen v. State

Urner, J., delivered the opinion of the Court. The bills of exception contained in the record on this appeal relate to rulings on the admissibility of evidence in the course of a trial which resulted in the defendant’s conviction of embezzlement. The material facts of the case are ¹²¹ undisputed. In August, 1924, William D. Simmons bought from Simon Getz a dwelling house and lot of ground in Bel Air for $1,165.50, subject to an existing mortgage on the property for $1,800, which the purchaser agreed to assume.

The defendant, who was an attorney-at-law, prepared the contract of purchase. In order to enable Simmons to finance the transaction the defendant obtained for him a loan of $3,000 from Jesse C. Carr. A mortgage to secure this loan was executed by Simmons immediately after he received his deed of the property from the vendor. The amount of the loan was paid by Carr to the defendant with the understanding that it -would be applied, so far as necessary, to the satisfaction of the existing $1,800 mortgage.

In a subsequent settlement with Simmons the defendant was credited with the sum required for the payment of that mortgage, and with other applications of the Carr loan and of the proceeds of a subordinate mortgage loan of $800 made by the defendant himself to provide for repairs and improvements on the property. The $1,800 mortgage has never been paid, and for embezzlement of the fund entrusted to him for the payment of that mortgage the defendant has been indicted, convicted and sentenced. The first five of the thirty-one exceptions were reserved because of the admission in evidence of the contract of purchase, the deed and the three mortgages to which we have referred. These were all material elements of the transaction under investigation and were properly admitted.

The fact that the affidavit as to the consideration of the Carr loan was made by the defendant as agent for the mortgagee did not render the mortgage inadmissible on the theory, advanced on the defendant’s behalf, that it had no tendency to prove the existence of his agency for Simmons, the mortgagor, as alleged in the indictment, in regard to the disposition of the money derived from the loan which the mortgage secured. The loan was made to Simmons upon a mortgage of his property, and it was evidently as his representative that the appellant received the money thus procured. His agency for ¹²² the mortgagee'for the purpose of making the affidavit of consideration was not incompatible with an agency for the mortgagor in the negotiation of the loan and the collection of the proceeds. Against the defendant’s objection, Hr.

Simmons was allowed to be asked, and to answer in the negative, the question whether he had ever paid any interest on the mortgage for $1,800. In connection with his testimony that he supposed the appellant had paid the mortgage, we think the admission of the statement excepted to was proper. It was the subject of the sixth exception. The interrogatory challenged by the seventh exception was unobjectionable, but the record does not show that it was answered.

The eighth, ninth and tenth exceptions refer to the admission of proof that the defendant in his settlement with Simmons retained a sufficient amount to discharge the $1,800 mortgage lien. The rulings on those exceptions were correct. On cross-examination, after testifying that he had been living on the mortgaged property since September, 1924, Simmons was asked: “What has it cost you since you have been there ?” This was an immaterial inquiry. The eleventh exception was taken because the question was disallowed.

Having’ testified that he bought the property through the defendant, Simmons was asked, on cross-examination: “What was the fee you paid him?” This also was an irrelevant question. An objection to it was sustained, and the twelfth exception was thereupon reserved. Another cross interrogatory addressed to the same witness was as to the extent of the improvements he had made to the property since his purchase. This inquiry, which was the subject of the thirteenth exception, was not pertinent to the issue.

The only improvements with which the defendant’s agency was concerned were those to which the proceeds of the $800 mortgage loan were to be applied, and it is not suggested that the money so provided was insufficient for its intended use. ¹²³ In the course of his cross-examination, Simmons was asked the following question, as appears from the fourteenth bill of exception: “Have you sworn to a bill of complaint against Mr. Carr, in which you ask for an injunction restraining the collection of the $3,000 mortgage or any part thereof, on the ground that the $1,800 mortgage is outstanding against you —and on the further ground that Mr. Doxen, (the defendant) was the agent of Mr. Carr and not your agent in the execution of the $3,000 mortgage?” This question was disallowed on objection by the State. The ruling was proper, in our judgment. The allusion to the injunction suit