State v. Dubois
| Decision Date | 22 January 1940 |
| Docket Number | 6045 |
| Citation | 98 P.2d 354,98 Utah 234 |
| Court | Utah Supreme Court |
| Parties | STATE v. DUBOIS |
Appeal from District Court, Seventh District, Grand County; George Christensen, Judge.
Joseph L. Dubois was convicted of embezzlement, and he appeals.
Affirmed.
Knox Patterson and Karl v. King, both of Salt Lake City, for appellant.
Joseph Chez, Atty. Gen., for respondent.
Defendant was convicted in the District Court of Grand County of a felony, to wit, embezzlement, and he appeals. Appellant contends (1) that the evidence does not sustain the verdict; (2) that the court did not instruct the jury as to the law relative to the theory of the defense; (3) that the court erred in not submitting to the jury the question of a lesser offense. There is no substantial dispute as to the facts. Briefly stated they show that from April, 1936 to April 19, 1937, appellant operated for the Utah State Liquor Commission, hereinafter called "the Commission", Package Agency No. 88, located at Thompson, Utah, under a written contract or agreement. Under this agreement appellant was required to keep all monies received from the sale of liquors separate and apart from all other monies received by him, and to remit the same weekly to the Commission. It was also his duty to receive the money for any liquor sold before the liquor was delivered to the purchaser. An audit as of April 15, 1937, revealed that appellant was short in his remittances to the Commission in the sum of $ 1,081.05; that is, between the middle of May, 1936, and the middle of April, 1937, he had sold liquor amounting in price to $ 1,081.05 for which he had not accounted to the Commission. When the auditor for the Commission checked the Agency in April, 1937, appellant produced purchase orders of customers for this amount over and above the remittances that had been made and the money on hand. He stated to the auditor that such orders or slips had been overlooked in previous reports and the money therefor was in the bank. At a subsequent date and upon trial appellant contended that the shortage was due to the fact that he had sold liquor on credit and had not yet collected the money for the same. In this connection he testified that when he sold liquor on credit the purchase orders (called "slips" throughout the testimony) were not sent in to the Commission; that as the money was collected the slips were sent in with the remittance. If a credit sale was of a kind of liquor of which the supply was getting low, the slip, although a credit sale, would be sent in and a cash sale slip held back, so he could order more liquor of that brand. "In that way I held back cards representing cash sales", "I held cash tickets, but sent in cash of those tickets to cover tickets that were on a charge account." "Some cash tickets I held for a month but sent in the cash for the credited cards."
Just after the visit of the auditor, indicated above, appellant borrowed $ 300 and paid it to the Commission on the shortage. He testified that thereafter his bondsmen paid $ 500 to the Commission because he was in default; that the total shortage was $ 1,083.60. He had offered to make monthly payments on the balance due. That on Monday following the 15th day of April, he first told the Commission he had sold liquor on credit. While he did not remember all who had bought liquor on credit, he gave the names of six people to whom he extended credit for liquor. One of these Robertson, was called as a witness by appellant. He testified that he had bought whiskey on credit but paid for it the same or the next day; that he had paid for all liquor so bought before April 14th. Shown several slips for liquor purchased by him, and found among the slips representing the shortage, he testified that all had been paid for before April 14th, and much of it had been purchased on other days than those shown on the slips. The State called as witnesses three of the purported credit buyers named by appellant, each of whom testified they had never bought any liquor on credit; one denied that he had ever purchased any liquor, and never even had a permit. The State also proved definitely that Tommy Brown, to whom appellant claimed to have sold considerable liquor on credit, had died more than three months before appellant ever opened the package agency. Appellant's wife, called as a witness by him, testified that she had changed the dates on some of the slips at the request of the Commission auditor to make them jibe with the report made April 14th when they were sent in. That is essentially all the evidence and there are no substantial conflicts in it. We consider now the assigned errors. (1) Appellant contends the judgment should be reversed as not sustained by the evidence, because (a) the State did not make a prima facie case, and therefore his motion for a directed verdict should have been granted; (b) there is no evidence that appellant actually had the physical possession of the money he is charged with embezzling; (c) the evidence shows the money alleged to have been embezzled was the property of the State of Utah, and not of the Commission, as charged in the information.
The motion for a directed verdict was made at the close of the State's case in chief. At that time the evidence showed appellant had sold $ 1,081.05 worth of liquor for which he had not accounted; that he stated the money therefor was in the bank and he would get it the next morning; that he did not have the money in the bank or elsewhere; that under the law he could not sell liquor until he first received the money therefor; that his explanation for not having accounted and remitted the money was that his wife had made out the last reports and had overlooked these slips; that he did not have the money representing the purchase price; the slips were in evidence and some of them dated back to the prior November or five months prior to the audit. The only ground set forth in the motion for a directed verdict was the lack of evidence showing appellant had actually received the money for the liquor that was short. Under the evidence and the law, the motion as made was not well taken and the denial thereof was not error.
As to the second reason, in addition to what we have just stated, the record at the time of the verdict discloses that appellant had actually received the cash for some of the slips for which he had not accounted and had used this money to cover up and pay for liquor previously sold and unaccounted for, or as he put it to cover a prior shortage. While the exact amount of such transactions does not appear, yet appellant testified that they were frequent occurrences. Furthermore, several persons whom appellant claimed had purchased liquor on credit, which credit went into the shortage, testified they had paid for the liquor. The jury could well believe such witnesses as against appellant. The evidence is ample therefore to sustain a finding that appellant had received a considerable sum of money, making up the alleged shortage, and for which he had not accounted. We may further point out that when appellant admits that he took money received from one sale or transaction and used it to cover a shortage on another transaction, such act constitutes appropriating the money to his own use to cover his prior shortage. State v. Carlstrom, 94 Utah 159, 76 P.2d 565; State v. Judd, 74 Utah 398, 279 P. 953; State v. Olson 75 Utah 583, 287 P. 181; State v. Christiansen, 98 Utah 278, 94 P.2d 472. This point is therefore resolved against appellant.
Assuming the money claimed to have been embezzled was the property of the State of Utah and not of the Commission, appellant is not in a position to avail himself of that defense. The record is conclusive that appellant was the agent of the Commission and came into possession of the liquor and the money he received therefor by virtue of such agency and under his employment as such agent. It is also admitted that appellant was to account for and pay to the Commission all money received from the sale of liquor. The statute provides that any agent or employee who fraudulently appropriates to his use any property of another which has come into his control or care by virtue of his employment as such agent is guilty of embezzlement. Section 103-15-7, R. S. U. 1933. The gist of the offense of embezzlement lies in the breach of the trust or fiduciary relationship existing by virtue of the employment. 9 R. C. L. 1273; notes: 87...
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...the "palpable error" and "manifest prejudice" criteria articulated in Cobo but only in criminal cases. See, e.g. , State v. Dubois , 98 Utah 234, 98 P.2d 354, 360 (1940) ; State v. Peterson , 121 Utah 229, 240 P.2d 504, 507 (1952) ; State v. Sanchez , 11 Utah 2d 429, 361 P.2d 174, 175 (1961......
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