Bowen v. State

• Decision Date: 21 February 1955
• Docket Number: No. 78,78
• Citation: 206 Md. 368,111 A.2d 844
• Parties: James H. BOWEN v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 368

206 Md. 368

111 A.2d 844

James H. BOWEN v. STATE of Maryland.

No. 78.

Court of Appeals of Maryland.

Feb. 21, 1955.

Barnard T. Welsh, Rockville, and Arthur J. Hilland, Washington, D. C., for appellant.

James H. Norris, Jr., Asst. Atty. Gen., (Edward D. E. Rollins, Atty. Gen., and Walter W. Dawson, State's Atty., Montgomery County, and Thomas M. Anderson, Sp. Asst. State's Atty., Montgomery County, Rockville, on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

COLLINS, Judge.

This is an appeal from a conviction on an indictment charging the appellant, James H. Bowen, on September 8, 1952, and thence continually until April 8, 1953, in Montgomery County, Maryland, in the first count with larceny after trust, Code 1951, Article 27, Section 420, and in the second count with embezzlement, Code 1951, Article 27, Section 154.

The pertinent parts of the first count follow. '* * * that James H. Bowen, late of said County, on the eighth day of September, in the year of our Lord nineteen hundred and fifty-two, and thence continually until the eighth day of April, in the year of our Lord nineteen hundred and fifty-three, at the County aforesaid, being entrusted with the possession of ten thousand, six hundred, seven dollars, thirty-six cents, current money of the United States, * * * of the goods and chattels, moneys and property of William J. Collins and Catherine V. Collins, for the purpose of applying the said ten thousand six hundred seven dollars, thirty-six cents, current money of the United States, * * * for the use and benefit of the said William J. Collins and Catherine V. Collins, did then and there feloniously and fraudulently convert the same to the use of the said James H. Bowen, * * *.'

The pertinent parts of the second count follow. '* * * the said James H. Bowen being then and there agent of William J. Collins and Catherine V. Collins, and as such agent of William J. Collins and Catherine V. Collins, having received into his possession for, on account of and in the name of the said William J. Collins and Catherine V. Collins, his employer, the sum of ten thousand, six hundred, seven dollars, thirty-six cents, current money of the United States, * * * did then and there feloniously and fraudulently embezzle said sum of ten thousand, six hundred seven dollars, thirty-six cents, current money of the United States, * * * of the money and property of the said William J. Collins and Catherine V. Collins, * * *.'

On July 22, 1952, Mrs. Violet C. Helgemo entered into a contract to sell her house and lot in Silver Spring, Maryland, to William J. Collins and Catherine V. Collins, his wife, for the sum of $19,500. Mr. Collins paid Mrs. Helgemo a deposit of $1,000. The property under contract was subject to a first trust in the amount of $12,500 due the Perpetual Building Association of the District of Columbia (Perpetual). The purchasers agreed to pay 'all cash above 1st trust or all cash.' Mr. Collins decided to sell the house which he then owned and apply the proceeds to the above purchase, to borrow $7,000 from the Home Federal Building and Loan Association and with the cash thereby received to pay off Perpetual.

On September 8, 1952, settlement was held at the office of the Security Title and Investment Corporation (Security), in Bethesda, Montgomery County, Maryland. The appellant was president of that corporation. He was not present at that time. The settlement was handled by Mrs. Melva G. Story, who was appellant's secretary and the secretary of Security and the only employee of that corporation other than the appellant. Mr. Collins, the purchaser, instructed the Home Federal Building and Loan Association to send $6,983, which he had received on the mortgage to that Association, to Security. He also instructed the Lawyers' Title Insurance Corporation to send $10,670.17, which he had received from the sale of his house, to Security. He also gave to Security his personal check in the amount of $1,026.50, which paid the purchase price of the house and lot he was buying and the costs of the transaction. From these checks which were sent to Security he instructed Security that the mortgage of $12,500, which Mrs. Helgemo had given to Perpetual, was to be paid. Mr. Collins' check in the amount of $1,026.50 to the order of Security was given by Collins to Security's employee, Mrs. Story, in Security's office in Bethesda, Maryland. This check was deposited in the trustee's account of Security in the Security Bank of Washington, D. C. (Security Bank), located in the District of Columbia. The check in the amount of $6,983, from the Home Federal Building and Loan Association was mailed by that Association to Security at Bethesda, Maryland, and deposited in Security's trustee's account in the Security Bank in Washington. Settlement for the sale of Mr. Collins' old home was made at the offices of the Lawyers' Title Insurance Corporation, at 923 Fifteenth Street, N.W., in Washington, D. C. Under instructions from Mr. Collins, the check in the amount of $10,670.17 realized from that sale was delivered to Security at Bethesda, Maryland, and deposited by it in its trustee's account in the Security Bank in Washington. Therefore, all the checks were deposited in Washington and paid in Washington. All the withdrawals from the trustee's account were made in Washington.

The testimony shows that Security was incorporated in 1946 with an office in Washington. Later that year it acquired an office in Bethesda. It continued in existence until 1953. The incorporators were Ellis M. Jones, James H. Benner and the appellant. Messrs. Benner and Jones agreed to purchase part of appellant's stock but did not do so. Appellant became owner of all the common and preferred stock except for $5,000 worth of preferred stock which was purchased by one Dr. Maxwell. An account was opened in the Security Bank early in 1947. Security conducted a title business from the time of its incorporation until it was closed out. Some time during the existence of the corporation Mr. Benner, Mr. Jones and a Mr. John R. Hoeffler, together with the appellant, served as officers. At one time the corporation had a tremendous business.

Mr. Collins, after the settlement, received a bill from an insurance company in the amount of $52.52 which was to have been paid by Security at the time of settlement. He contacted the appellant, who promised that he would attend to this. Mr. Collins testified that he finally had to pay this bill. Early in 1953 a letter came to Mr. Collins' new home, addressed to Mrs. Violet Helgemo, from Perpetual. Upon seeing this letter, Mr. Collins became suspicious and upon investigation it was discovered that Security had never paid off the first trust held by Perpetual. Mr. Collins then, on February 11, 1953, employed an attorney, Mr. Bullard. The appellant, Mr. Bowen, told Mr. Bullard that the reason Perpetual had not been paid, was because a release of a 1939 deed of trust on the property had not been received and, as soon as a substitute trustee was appointed to release this deed of trust, Perpetual would be paid. This substituted trustee was not appointed to release the 1939 deed of trust until February 3, 1953. When asked whether Security had in its escrow account the money with which to pay Perpetual, Mr. Bowen answered in the affirmative.

On February 17, 1953, an attachment case was filed in the District of Columbia. At that time it was discovered that Security had only $1,637.67 in the Security Bank and this amount was in three different accounts. It further developed that appellant and Security had no other money. Appellant then signed a note, personally and as president of Security, for the amount due Perpetual. The $1,637.67 was paid to Mr. Collins' attorney, Mr. Bullard. Part of this money was paid by Mr. Bullard to Perpetual and the balance held for Mr. Collins. Judgment was obtained for the balance owing on the note in the Circuit Court for Montgomery County. Appellant told Mr. Bullard that in 1947 one of the employees of Security had stolen money from it and had left the State and, although assurances had been given that repayment would be made, this had not been done. Appellant in his testimony said that all the trust funds received by Security were placed in one account and that no one account was entitled to be paid any more than another. Appellant further testified: 'But monies paid in on a particular escrow should be applied on a particular escrow; I know that as well as you do. The fact is in this case all escrow funds were deposited in a single bank account, and out of that bank account were paid only legitimate escrow sums. Now, since the Security Title and Investment Corporation trustee account was short by reason of--so there arrived a time, and I confess that in the past two years of my business in the title company I had a divided interest because I was operating another business,--the account was short and I did not know or fully realize the extent of the shortage. When I came to the fall of 1952, at the time Mrs. Helgemo's case was settled, I had no particular shortgage in the account, I had forty or fifty thousand dollars; when it came to November and December and January and the account dwindled to nothing, I still had accounts to pay and I stopped operating. I was faced with a very serious situation which I frankly didn't know how to unravel quickly; should I throw up my hands and let somebody lose their house, or should I endeavor to pay it; I paid it.' The testimony also showed that some time after the Collins' money had been placed in Security to clear Collins' title, and before November of 1952, it had been used by Security to pay other accounts. In September of 1953, after the warrant for appellant was issued he borrowed from relatives, put up everything he had, deeded his home, and raised $94,000, with part of which he paid...