Briggs v. People
| Decision Date | 02 February 1925 |
| Docket Number | 11116. |
| Parties | BRIGGS v. PEOPLE. |
| Court | Colorado Supreme Court |
Rehearing Denied March 2, 1925.
Error to District Court, City and County of Denver; Francis E Bouck, Judge.
Frank N. Briggs was convicted of embezzlement, and he brings error and applies for supersedeas.
Supersedeas denied, and judgment affirmed.
S. Harrison White, of Denver, for plaintiff in error.
Wayne C. Williams, Atty. Gen., and Joseph P. O'Connell, Asst Atty. Gen., for the People.
Plaintiff in error, hereinafter referred to as defendant, was convicted of embezzlement and fined $2,000. To review that judgment he brings error and asks that the writ be made a supersedeas. The cause is now before us on that application.
Defendant first contends that, as he moved for a directed verdict at the close of the people's case on the ground of insufficient evidence, he is now entitled to have the trial court's adverse ruling on that motion reviewed on the record as it then stood. He is mistaken. He could only so confine the review by standing on his motion. Otherwise, the correctness of the ruling is determined from the state of the evidence at the end of the trial. 2 Thompson on Trials (2d Ed.) § 2271. The reason is apparent. Should such a motion be made and overruled, when there was in fact no evidence to support the case of a plaintiff, and defendant elect to proceed and supply that evidence, the rule here contended for would oblige us to nonsuit a plaintiff, the justice of whose demand was admitted by his adversary, or discharge, for lack of evidence, a prisoner who had confessed in open court.
Defendant was president of a bank. He obtained money from the bank for which his mother gave her notes. These notes defendant secured by real estate and collateral belonging to him. Later, to meet a protest of the bank examiner, the notes of Howard and his wife, friends of defendant, were substituted for the notes of defendant's mother. Among the securities were 8,500 shares of stock belonging to defendant. An effort was being made by the bank and defendant to reduce this indebtedness, and, in 'working it out,' it was agreed that he should sell the securities and use the proceeds to reduce the loan. He received said shares of stock from the teller of the bank and sold them for $1,700, evidenced by the purchaser's check for that amount payable to defendant's order. Instead of applying this amount on the Howard notes he indorsed the check and deposited it to his own credit in his own bank, on which it was drawn.
The information contained eight counts. Before the jury was instructed the people elected to stand on the second, fourth and seventh. The jury was then instructed that it could not return defendant guilty on more than one count and its verdict was based on the second. That count reads in part:
'Said Frank N. Briggs had in his possession and under his control, by virtue of his position as said officer and director, a certain check and order for the payment of money dated November 3, A. D. 1921, payable to the order of F. N. Briggs, for the sum of $1,700, signed Amter & Co., by Amter, and drawn upon said the Interstate Trust Company, which said check was then and there of the value of $1,700, and was then and there the funds, security, and property of and under the control of said bank; and the said Frank N. Briggs, as said officer and director, and while so in the possession of said check, did then and there willfully, unlawfully, and feloniously embezzle and cause to be embezzled, and fraudulently convert to his own use, said check without the consent of said bank, and with intent to deceive, injure, cheat, wrong, and defraud said bank, its directors, stockholders, and depositors.'
The fourth count charged that defendant 'abstracted and converted to his own use' the stock in question, and the seventh that he 'unlawfully and feloniously misapplied said check with intent to deceive, injure, cheat, wrong, and defraud said bank.'
Defendant was convicted under section 2675, C. L. 1921, which reads:
'No officer, director, owner, or employé of any bank shall, directly or by indirection, embezzle, abstract, or misapply, or cause to be embezzled, abstracted, or misapplied, any of the funds or securities or other property of or under the control of a bank, with intent to deceive, injure, cheat, wrong, or defraud any person.'
The penalty for violation of said section is fixed by section 2740, C. L. 1921 as 'a fine of not to exceed two thousand dollars, or by imprisonment in the penitentiary for a term not to exceed twenty years, or by both such fine and imprisonment.'
1. Counsel for defendant says the evidence failed to show that the check in question was the property of the bank because (a) The check was...
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