Arbuckle v. United States

• Decision Date: 13 November 1944
• Docket Number: No. 8700.,8700.
• Citation: 146 F.2d 657,79 US App. DC 282
• Parties: ARBUCKLE v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

79 US App. DC 282, 146 F.2d 657 (1944)

ARBUCKLE v. UNITED STATES.

No. 8700.

United States Court of Appeals District of Columbia.

Argued October 11, 1944.

Decided November 13, 1944.

Mr. Warren E. Magee, of Washington, D. C., with whom Mr. Paul J. Sedgwick, of Washington, D. C., was on the brief, for appellant.

Mr. Charles B. Murray, Assistant United States Attorney, of Washington, D. C., with whom Mr. Edward M. Curran, United States Attorney, of Washington, D. C., was on the brief, for appellee.

Before GRONER, Chief Justice, and MILLER and EDGERTON, Associate Justices.

GRONER, C. J.

Appellant was convicted of ten separate embezzlements of money of the United States.¹ He had been appointed in 1935 as Manager of the Senate Restaurant, located in part in the Capitol and in part in the Senate Office Building. The appointment was made by Senator Neely, Chairman, on behalf of the Rules Committee of the Senate. In addition to appellant, there were also employed one King who was then, and for many years had been, Assistant Manager, and a Mrs. Payne, who was Cashier. The salaries of all three were paid by the United States. The moneys received in the operation of the restaurant came first into Mrs. Payne's hands. After checking the cash register with the amount on hand, she would turn over the money daily to Mr. King, who would from time to time deposit it in an account in the Anacostia Bank, opened in the name of "Senate Restaurant, United States Capitol," by authority of the Rules Committee. Payment for food purchased, wages of employees, and incidental expenses was made by King, either in cash or by check drawn by him on the account. The deficit between the income and outgo was covered by congressional appropriation.

On the 1st of September, 1938, King left Washington on his vacation and was gone until the 1st of October. In his absence the daily receipts of the restaurant were delivered to appellant by Mrs. Payne in separate envelopes. This method, Mrs. Payne testified, was followed by her as the result of instructions given her by appellant. The undisputed evidence is that Mrs. Payne did deliver to appellant between the 7th of September and the 1st of October envelopes containing money, including in one instance a small check, in the aggregate sum of $1,925. Admittedly, none of the funds so delivered were deposited in bank by appellant, and the issue in the case depended upon whether the jury believed appellant's statement that he turned over the envelopes with the currency to King on his return, or King's statement that appellant never delivered any of the envelopes or any part of the contents of the envelopes to him at any time, but, on his demand for the same, promised to make an accounting at a subsequent time.

The case was submitted to the jury on a well considered charge of the trial court and a general verdict of guilty was returned. On the appeal to this Court, thirty-six separate grounds of error are assigned, but only four are pressed, and we shall confine our discussion to these.

(1) Appellant insists that the testimony fails to establish the crime of embezzlement. The basis of this is that the evidence shows that appellant had only the custody, and not the legal possession, of the funds described in the indictment. It is quite true that Senator Neely in employing appellant instructed him to leave King in charge of the funds, and from this it is said that the result of the delivery of the money to appellant to deposit in the bank would confer upon him custody as distinguished from legal possession, and that a subsequent conversion would be larceny and not embezzlement. But we think, in the facts of this case, this does not follow. Appellant was the manager and was responsible to the United States, acting through the Chairman of the Senate Committee, for the carrying on of the business of the restaurant. While King was on duty, undoubtedly, the deposit of the money in bank and its disbursement were primarily his duties, but just as certainly, when King was ill and unable to attend to his duties, or when he was on vacation, it became appellant's duty, as the official head of the enterprise, to see that the funds were properly collected and properly accounted for. The nature and character of money or currency make it seldom susceptible of mere custody, unless specific or physical restrictions as to its use or disbursement are coupled with its delivery. If on these occasions appellant chose, as he did here, to designate himself as the person into whose hands the restaurant receipts should be placed, it cannot be doubted that such an order, in the circumstances, carried with it its own authority, and that possession of the money was received by him in his official capacity and subject to his official discretion. In this case a conversion of it would unquestionably constitute embezzlement.

(2). It is next claimed that the evidence fails to establish that the moneys involved were the "moneys" or "property of the United States," within the meaning of Section 47 of the Criminal Code. United States v. Mason, 218 U.S. 517, 31 S.Ct. 28, 54 L.Ed. 1133, is cited to sustain this point, but we think it not apposite. The Mason case involved fees received by the clerk of a court in the discharge of his duties as clerk. During the period in question these fees were not received by the clerk as moneys of the United States, but, as is pointed out in the opinion, as amounts allowed to him as his compensation and office expenses under the statutes defining his rights and duties. And, as the court then said, where a surplus remained payable to the United States, the clerk was as to this surplus not trustee for the United States, but a debtor of the United States.

In the instant case, as we have seen, the moneys received in the restaurant were used, so far as they would go, toward the payment of the ordinary expenses, not including the salaries of the officials charged with the duty of running the restaurant. If, as was invariably the case, the amounts so received were not enough, the United States were liable for and actually did supply the balance. In these circumstances, it may very well be that while these moneys were not public moneys in the sense in which the ordinary revenues of government are public moneys, they were nevertheless moneys of the United States in the sense of moneys which the United States controlled and which, through an instrumentality of the United States created by Congress, they disbursed. Richmond F. & P. R. Co. v. McCarl, 61 App.D.C. 290, 293, 62 F.2d 203; Minis v. U. S., 15 Pet. 423, 448, 10 L.Ed. 791; Loewe v. U. S., 9 Cir., 135 F.2d 622.

(3) Counsel earnestly contend that the trial court erred in...