98 P.2d 354 (Utah 1940), 6045, State v. Dubois

CourtSupreme Court of Utah
Writing for the CourtLARSON, Justice.
JudgeLARSON, Justice. MOFFAT, C. J., and WOLFE, McDONOUGH, and PRATT, JJ., concur. MOFFAT, C. J., and WOLFE, McDONOUGH, and PRATT, JJ., concur.
Citation98 P.2d 354,98 Utah 234
Date22 January 1940
Docket Number6045
PartiesSTATE v. DUBOIS

Page 354

98 P.2d 354 (Utah 1940)

98 Utah 234

STATE

v.

DUBOIS

No. 6045

Supreme Court of Utah

January 22, 1940

Page 355

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.

LARSON, Justice. MOFFAT, C. J., and WOLFE, McDONOUGH, and PRATT, JJ., concur.

OPINION

Page 356

[98 Utah 237] LARSON, Justice.

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 [98 Utah 238] 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

Page 357

held cash tickets, but sent in cash of those tickets to cover tickets that were on a charge account." [98 Utah 239] "Some cash tickets I held for a month but sent in the cash for the credited cards."

"A. Every article on my report would be accompanied with its purchase price, but possibly one of those cards or possible three or four of the cards in that certain report would be still owing to me, and I had taken the cash that I got on some other sale that wasn't reported on that card, and made up this card."

"A. Well, if the whiskey was the same price, certainly, but if I sold a bottle of whiskey like Seagram $ 1.85 a quart, and I wanted Gold Bond whiskey, I would send in one card that I would have of Gold Bond, and I could possibly send in two cards that was held back that was on a credit, and use up the other 85 cents. But we always sent in all the money we took in and would hold back just what we had to that was out on credit."

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 [98 Utah 240] 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...

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18 practice notes
  • 680 P.2d 1042 (Utah 1984), 17796, State v. Fontana
    • United States
    • Utah Supreme Court of Utah
    • March 2, 1984
    ...this case. State v. Pierren, Utah, 583 P.2d 69, 71 (1978); State v. Blea, 20 Utah 2d 133, 137, 434 P.2d 446, 449 (1967); State v. Dubois, 98 Utah 234, 245-46, 98 P.2d 354, 359-60 (1940). Cf. Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977) (failure to instru......
  • 327 N.W.2d 722 (Wis.App. 1982), 81-915-CR, State v. Norton
    • United States
    • Wisconsin Court of Appeals of Wisconsin
    • November 17, 1982
    ...and where general ownership is in one person and a special ownership in another, ownership may be laid in either.' State v. Dubois, 98 P.2d 354, 358 (Utah 1940). Thus, stolen property may be embezzled from the thief. State v. Littschke, 40 P. 167, 168 (Or. 1895). Most state courts hold that......
  • 278 P.2d 618 (Utah 1955), 8226, State v. Mitchell
    • United States
    • Utah Supreme Court of Utah
    • January 13, 1955
    ...21 A.L.R. 603 et seq. [13] Ibid. [14] Ibid. [15] State v. Sullivan, 73 Utah 582, 276 P. 166 and cases cited therein. State v. Dubois, 98 Utah 234, 98 P.2d 354; State v. Ferguson, 74 Utah 263, 279 P. 55; State v. Peterson, Utah 1952, 240 P.2d 504. [1] State v. Hyams, 64 Utah 285, 230 P. 349;......
  • 378 P.2d 352 (Utah 1963), 9739, State v. Taylor
    • United States
    • Utah Supreme Court of Utah
    • January 21, 1963
    ...would exonerate the bank teller who 'borrowed' money from the bank, without authority, but who later returned it. As to State v. Dubois, 98 Utah 234, 98 P.2d 354 (1940), I think the factual situation, Page 355 the quantity, quality and weight of the proof there, were not on all fours with t......
  • Request a trial to view additional results
18 cases
  • 680 P.2d 1042 (Utah 1984), 17796, State v. Fontana
    • United States
    • Utah Supreme Court of Utah
    • March 2, 1984
    ...this case. State v. Pierren, Utah, 583 P.2d 69, 71 (1978); State v. Blea, 20 Utah 2d 133, 137, 434 P.2d 446, 449 (1967); State v. Dubois, 98 Utah 234, 245-46, 98 P.2d 354, 359-60 (1940). Cf. Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977) (failure to instru......
  • 181 P.2d 849 (Okla.Crim.App. 1947), A-10619, Finley v. State
    • United States
    • Oklahoma United States State Court of Criminal Appeals of Oklahoma Court of Criminal Appeals of Oklahoma
    • June 11, 1947
    ...32, wherein this court said: 'A defendant is not entitled to an instruction on an issue not raised by the evidence.' In State v. Dubois, 98 Utah 234, 98 P.2d 354: 'A party is entitled to have the jury instructed on the law governing the issues according to his theory, providing such theory ......
  • 327 N.W.2d 722 (Wis.App. 1982), 81-915-CR, State v. Norton
    • United States
    • Wisconsin Court of Appeals of Wisconsin
    • November 17, 1982
    ...and where general ownership is in one person and a special ownership in another, ownership may be laid in either.' State v. Dubois, 98 P.2d 354, 358 (Utah 1940). Thus, stolen property may be embezzled from the thief. State v. Littschke, 40 P. 167, 168 (Or. 1895). Most state courts hold that......
  • 28 N.W.2d 720 (Minn. 1947), 34389, Survis v. A.Y. McDonald Mfg. Co.
    • United States
    • Minnesota Supreme Court of Minnesota (US)
    • August 8, 1947
    ...account of the wrongdoer. See, State v. Glaze, 177 Iowa 457, 159 N.W. 260; People v. Forman, 67 Cal.App. 693, 228 P. 378; State v. Dubois, 98 Utah 234, 98 P.2d 354; People v. Donohue, 369 Ill. 558, 17 N.E.2d 21; Commonwealth v. Hackney, 117 Pa.Super. 519, 178 A. 417; Watson v. State, 158 Te......
  • Request a trial to view additional results

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