"If any officer, agent, or servant of a corporation, public or private, . . . shall embezzle or fraudulently convert to his own use any money, bill, note, or security for money, evidence of debt, or other effects or property whatever of such *Page 15 person or corporation, or in their possession or keeping, or shall knowingly or voluntarily pay or deliver any such money . . . to any person or to the order of any person, knowing that such person is not entitled to receive it, . . . he shall be fined," etc. P. S., c. 273, s. 17.
There was evidence tending to show that the deposit in the First National Bank to the credit of the Manchester News Publishing Company was the property of that corporation; that the claim of the Goss Printing Company was the debt of the defendants, and that no liability therefor had been assumed by the corporation; and that the defendants, knowing these facts, and having as officers of the corporation possession of the money owned by or in the possession and keeping of the corporation, knowingly applied the corporate funds to the payment of their private debt.
If the facts which the evidence tended to prove were established with the requisite degree of certainty, a violation of the statute was made out. The objection, that the evidence was insufficient to establish the facts in issue with that degree of certainty, is merely to the weight of the evidence and raises no question of law. The claim that "if in connection with the act which is alleged to be criminal there are other facts and circumstances which negative the existence of a criminal intent or are consistent with innocence, then a conviction cannot be had" may be sound, but it has no application here; for there are no facts or circumstances whose existence is conceded, or which are so conclusively proved as to be beyond dispute, which "negative a criminal intent" or are "consistent with innocence." It is not conceded or conclusively established that the money in the bank was the defendants', or that the debt was the corporation's to pay, or that the defendants misunderstood the situation. All these facts were in dispute before the jury; and if there was evidence to support the state's claim, it cannot be held as matter of law that any one of them is established by the contrary evidence, or by the presumption of innocence. As the defendants did not rest their case upon their motion for a verdict made at the close of the state's case, but proceeded to introduce evidence, the question is whether the whole case contains any evidence for the jury.
The defendants, having done business as a copartnership under the name of the Manchester News Publishing Company, formed a corporation with the same name. Before this their bank account was kept in the name of H. N. Davison, treasurer Manchester News Publishing Company. Soon after the vote (September 23, 1901) making the capital stock of the corporation $25,000, an account was opened (September 30, 1901) under the name *Page 16 "Manchester News Publishing Company, H. N. Davison, treasurer." There was direct evidence that the deposit with which this account was opened ($4,750) was the property of the corporation, and that claims against the corporation were paid from this account. The defendants contended that all other deposits to this account came from sales of stock belonging to them; but there was no evidence of the issue of any stock to them until the issue of $13,000 for the press was authorized on December 23, 1901, and the transaction completed by the bill of sale of January 1, 1902, before which dates there had been additional deposits amounting to $2,792.50. The act charged as embezzlement was a payment made from this account. That the account stood in the name of the corporation, changed from the form used by the copartnership, and that moneys belonging to the corporation were deposited in the account and claims against it paid therefrom, was evidence tending to show that the account represented money belonging to the corporation. Whether the defendants' explanation was true, and what inference should be drawn from the inability of the defendants to tell from whom they had received the money deposited in the account, was for the jury.
The language of the vote of the directors was evidence as to the terms upon which the press was purchased by the corporation. Other evidence consisted of the bill of sale signed by the defendants and the oral testimony. But the vote of the directors even does not conclusively establish that the corporation were to pay the defendants $13,000 in capital stock for the press and then pay the parties of whom it was purchased substantially the full purchase price. The directors voted to purchase of the defendants the press and fixtures at a price not exceeding $13,000, and to pay for it in capital stock at par. This language is at least open to the inference that complete title to the press was to be acquired by the corporation by the issue of $13,000 capital stock. It being understood that Davison and Newman had not a complete title, the title that could be then acquired from them would necessarily be subject to the conditions then attacked to the press. The instructions to the clerk to see to the execution of "the proper bill of sale and other papers" might indicate an understanding that something more than a mere bill of sale would be necessary to secure to the corporation complete title to the press in exchange for the capital stock. There is no necessary conflict between the vote of the directors and the bill of sale. The directors voted to buy, not the interest of Davison and Newman, but the press. The bill of sale conveys what the directors voted to buy, and warrants the title. Assuming that Davison and Newman were responsible, this was a simple method of carrying out the vote and authorizing *Page 17 the issue of the $13,000 capital stock. The vote may have contemplated "other papers" to secure the warranty of the bill of sale; but whether the mere bill of sale with warranty was or not a complete execution of the duty imposed on the clerk, the evidence of the record of the directors' vote does not conclusively establish that the corporation bought Davison's and Newman's title instead of the "press and fixtures." What inference should be drawn from a comparison of the vote to purchase the press with the vote of January 28, 1902, to purchase the Hanover-street plant in exchange for $7,000 of the capital stock at par, "providing . . . a full and complete title is given by the company," was also for the jury. If it can properly be argued therefrom that in the case of the press only the interest of the defendants in the contract for the press was purchased, it may also be suggested that the reason for the definiteness of the second vote was the better understanding of the character of the defendants' title to the press and an unwillingness to take other property from them upon their warranty of title. There being some evidence to sustain the state's case, the motion to see aside the verdict as against the weight of the evidence raises no question of law.
The objection to the testimony of Fellows, that his understanding of the contract evidenced by the bill of sale was incompetent, is sound as matter of law as stated but is not sustained by the record. The witness was not asked for his understanding, but for what the defendants told him. The question to which objection was made and to which the exception relates was competent. If the defendants thought the answer of the witness might be understood as giving his own understanding of the contract, for which he was not asked, instead of the substance of what the defendants said, for which he was asked, the matter could have been made clear by cross-examination, or the answer could have been objected to as irresponsive. No objection to the answer was taken. The only fair and intelligent construction that can be given to this portion of the record is that the witness intended to give, and must have been understood to have stated, the substance of what the defendants said to him. The objection taken in the brief filed since the argument, that Fellows' testimony was incompetent because the evidence of the contract was all in writing which could not be affected or changed by parol, in not applicable. "In a suit at law between the parties to a written agreement, or those claiming under it, extrinsic evidence is not admissible to contradict or alter its terms. The agreement does not conclude strangers. In a controversy between . . . one of the contractors and a stranger, either party may show by parol that the written contract was made by mistake or fraud, or that by design *Page 18 of the parties it misrepresents the true transaction." Libby v. Company,67 N.H. 587, 588. In this controversy between the state and one of the parties to the contract, where the criminal intent of the defendants was in issue, any facts bearing upon the belief under which the defendants acted were competent. 4 Wig. Ev., s. 2446; Walker v. State, 117 Ala. 42. If such evidence could not have been received, the bill of sale as conclusive evidence of the contract finally made would have established, against the defendants' contention, that the debt which they were charged with paying from the funds of the corporation was their own debt, and their own parol evidence of their understanding must have been excluded. Furthermore, Fellows' evidence did not contradict, change, or alter the meaning of the bill of sale to which alone it related, and if incompetent on the ground suggested was immaterial and not prejudicial, since it only tended to prove a point, on the contention now made, already conclusively proved. State v. Blaisdell, 59 N.H. 328; Foye v. Leighton, 24 N.H. 29, 38.
The charge contained the following sentence: "In this case, if the facts are that the debts were those of the respondents, and they took the funds of the company to pay such debts, you are warranted in drawing the inference that they intended to embezzle the funds." Objection is now made, in support of an exception taken at the time, that this statement excluded from the consideration of the jury the belief under which the respondents acted. It does not appear that this omission, if erroneous, was called to the attention of the court at the time. There was no occasion to do so; for in the following sentence the court referred to the suggestion that the defendants may have misunderstood the situation, and said that if such were the fact the defendants were entitled to a verdict. Earlier in the charge the jury were told that to authorize a verdict of guilty it was incumbent upon the state to prove that the "defendants, having custody of the funds of the corporation, intentionally used those funds for their own purposes; . . . that the money in the bank was the property of the corporation, . . . and that these respondents, well knowing these facts, took the funds to pay their own debts." The court also adopted and approved the contention of the defence, that the state was bound to prove the acts charged as constituting the offence were done with guilty intent. Whatever inference might be drawn from the sentence by itself, the whole paragraph in which it appears does not exclude, but expressly includes, the belief under which the defendants acted as an element of the crime charged against them. And the point was impressed upon the jury at the close of the instructions, when they were told that "if at the time these transactions took place, these men understood that the company assumed *Page 19 the debt, and that the debt was the company's and not theirs, and acted upon that belief, they are not guilty. The question is: Did they then so believe, or did they understand that the debt was theirs? That is the issue for you to decide." Taking into account all that was said, plainer language could not be found to inform the jury that a mistaken belief as to their right excused the defendants. If the legal rule is correctly stated to the jury with all the exceptions and qualifications applicable, it is not a sufficient ground for a new trial that in commenting upon the evidence the rule was repeated, omitting some of the exceptions or qualifications. Cohn v. Saidel, 71 N.H. 558, 571; Saltmarsh v. Bow, 56 N.H. 428; Belknap v. Wendell, 36 N.H. 250.
Exception was also taken to the instruction of the court that proof of the intent is usually found in the nature of acts knowingly done, and to the illustration used. The jury were told that what the defendants now said was not conclusive, but was evidence for the jury to consider and give such weight to as they deemed just. It is not claimed there was error of law in these statements, but the objection now urged relates solely to the illustration used. The court said: "If a man stealthily takes your horse from the barn at night, it is sufficient evidence to warrant the conclusion that he intended to steal the horse; and if he should afterward, upon his trial, testify that he took it because he thought he owned it, his evidence would not be likely to raise a reasonable doubt on the subject in your minds." Even in jurisdictions where the common-law rule which permits the judge to give to the jury his opinion of the weight of a part or of the whole of the evidence, leaving the jury to pass thereon, has been abrogated by constitutional or statutory provisions forbidding a charge upon the facts or upon the weight of the evidence, what was said might not be considered objectionable. No opinion was expressed as to the credibility of the defendants as witnesses. The suggestion related merely to the value of a class of evidence. Durant v. Burt, 98 Mass. 161; Commonwealth v. Larrabee, 99 Mass. 413; Harrington v. Harrington, 107 Mass. 329. But the common-law rule has not been changed by statute in this state, and the constitution contains no reference to the subject. The defendants' citations from jurisdictions controlled by such provisions are not applicable. The power the court at common law of "advising the jury as to the nature, bearing, tendency, and weight of the evidence, . . . a duty which from its very nature must be, in a great measure, discretionary on the part of the judge" (1 Stark. Ev. *440), even to the extent of expressing an opinion upon the merits of the case, is recognized in England, in the federal courts, and in states where the lawmaking power has not interfered to change the practice. *Page 20 State v. Pike, 49 N.H. 399, 417; State v. Reed, 62 Me. 129; Rowell v. Fuller, 59 Vt. 688, 695; Commonwealth v. Child, 10 Pick. 252, 256; Matthews v. Allen, 16 Gray 594, 596; State v. Duffy, 57 Conn. 525; Jackson v. Rowland, 6 Wend. 666, 669; Massoth v. Canal Co., 64 N.Y. 524, 533; Gordon v. Little, 8 S. R. 533, — 11 Am. Dec. 632, 639; Mitchell v. Harmony, 13 How. 115, 130, 131; Allis v. United States, 155 U.S. 117, 123; authorities collected in 11 Enc. Pl. Pr. 91, 93; Sackett Inst. Jur. 8.
In the absence of decisions in point, it may be difficult to determine the precise limit which uniform practice in this state has placed upon the discretion of the trial judge in charging the jury as to the facts. Doe, J., in his dissenting opinion in State v. Pike, 49 N.H. 399, 416, refers to the common-law practice as obsolete in this state, and in subsequent opinions he refers to the English practice of the judge advising the jury on the facts and weight of the evidence as though it was unknown here. Lisbon v. Lyman, 49 N.H. 553, 572; State v. Hodge, 50 N.H. 510, 520; Gray v. Jackson, 51 N.H. 9, 15; Aldrich v. Wright, 53 N.H. 398, 404; Orr v. Quimby, 54 N.H. 590, 632 (dissenting opinion). But no case is to be found where a verdict has been set aside because of the comments of the court upon the evidence. The opinion in State v. Pike is reported as of June, 1870. Among the authorities cited by Judge Doe is Nutting v. Herbert,37 N.H. 346, 355, decided in July, 1858, in which it was expressly held that "observations of the court upon mere matters of fact, and their commentaries upon the weight of evidence and its application, are understood to be addressed to the jury merely for their consideration as the ultimate judges of matters of fact, and are entitled to no more weight or importance than the jury, in the exercise of their own judgment, choose to give them. They neither are, nor are understood to be, binding upon them, as true and conclusive expositions of the evidence; and therefore whether perfectly correct and appropriate or not, a bill of exceptions does not lie to such observations and commentaries." It is not probable that Judge Doe intended, in 1870, to describe as obsolete a practice recognized by the court as in existence twelve years before. His remark is to be understood in the light of the rule on the subject laid down and approved in several earlier cases. "It is not the ordinary practice in this state for the court to express opinions upon the weight of evidence; . . . but it is not irregular for them to make such suggestions in relation to the facts as they may suppose will be useful to the jury, the matter being left to the jury for decision." Cook v. Brown, 34 N.H. 460, 470. A similar statement of the practice is approved in Patterson v. Colebrook,29 N.H. 94, 102. In Flanders v. Colby, 28 N.H. 34, the court suggested *Page 21 to the jury that they could better judge of the credit to be given to a witness by his appearance on the stand than by any other circumstances. In the opinion Gilchrist, C. J., said: "The judge must make such suggestions upon the evidence as he deems most proper. This is a matter which cannot be limited." The substance of the rule as stated in the cases appears to be that the extent to which the facts shall be stated in the charge, and the commentaries to be made upon them, is for the trial judge, and that his action is not open to exception. Cases supra; Beach v. Hancock,27 N.H. 223, 230; Rollins v. Varney, 22 N.H. 99; Haven v. Richardson,5 N.H. 113, 126. In view of the reported cases, it is probable it was not intended, in the dissenting opinion in State v. Pike, to characterize as obsolete a practice of making general suggestions as to the evidence, which would tend to aid the jury in coming to a result and which in one view may be considered comments upon the weight of evidence, but that the judge had in mind the English practice of giving to the jury the view of the court upon the particular case or evidence before them. In McDougall v. Shirley,18 N.H. 108, 109, there is a suggestion by Parker, C. J., to the effect that the expression of personal opinion by the judge in the charge might be error.
As suggested, in the absence of any decisions the precise line which bounds the discretion of the court may be difficult to define. For a judge to inform the jury how he thought the evidence in which a fair conflict existed ought to be determined would probably appear to all lawyers now in practice an invasion of the province of the jury. Upon the general grounds of a violation of uniform and invariable practice and a denial of the right to a fair trial by the jury, and from the manner in which the distinction between law and fact is now drawn in this state (State v. Hodge,50 N.H. 510, 526), all would probably agree that such a proceeding should and would vitiate a verdict found in conformity thereto; but authorities would not be wanting to sustain it. There is no probability that such a case will ever arise, and it is not necessary now to seek the reasons why such a proceeding would constitute legal error, or to attempt to define the precise line between fair and unfair comment. In the present case, the only purpose of the illustration used, of which there was no pretence there was any evidence in the case (Simonds v. Clapp, 16 N.H. 222; Nutting v. Herbert, 37 N.H. 346), was to make clear to the jury that they were to pass upon the understanding of the defendants at the time of doing the acts charged in the indictment, and that they were not bound by the statements made by the defendants at the trial. The remark had no bearing on the preliminary questions before the jury — whether the debt was the defendants', *Page 22 and the money used to pay it the corporation's. Unless both of these facts were found against the defendants, their understanding was immaterial. Being made material by the finding against them, it was proper that the attention of the jury should be directed to the character of the evidence which they were to consider in determining it. What was said was within the limits of the discretion recognized by the New Hampshire cases cited to be within the province of the presiding judge. It does not appear that the defendants were prejudiced or the jury misled.
Exceptions overruled.
All concurred.