Christner v. State
| Decision Date | 25 June 1927 |
| Docket Number | A-5699. |
| Citation | 257 P. 330,37 Okla.Crim. 95 |
| Parties | CHRISTNER v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Where a defendant, the secretary and one of the active managing officers of a corporation, is prosecuted for the embezzlement of moneys delivered to the corporation for a specific purpose, it is essential that there be evidence from which it may reasonably and logically appear that the defendant had knowledge of the receiving of such money by the corporation and that it was either misappropriated by him in person or by some officer, agent, or employee of the corporation under his direction or authority.
An active directing officer of a corporation is not criminally liable for the acts of the corporation in misappropriating money intrusted to the corporation, where such acts are done by some officer or agent of the corporation, unless they act with the knowledge and under the authority of such directing officer.
Appeal from Superior Court, Pottawatomie County; Leander G. Pitman Judge.
Frederick W. Christner was convicted of embezzlement, and he appeals. Reversed and remanded.
J. B Dudley, of Oklahoma City, Chas. E. Wells and Roy F. Lewis both of Shawnee, for plaintiff in error.
Edwin Dabney, Atty. Gen., Smith C. Matson, Asst. Atty. Gen. (Leon S. Hirsh, of Oklahoma City, of counsel), for the State.
The plaintiff in error, hereinafter called defendant, was convicted in the superior court of Pottawatomie county on a charge of embezzlement, and was sentenced to serve a term of four years in the state penitentiary.
The prosecution was based on section 2122, Comp. Laws 1921. Section 2122 defines embezzlement committed by a director, officer, or employee of a corporation, and section 2124 defines embezzlement by persons in a fiduciary relation generally. A brief statement of the facts will suffice. Defendant was the secretary of the Conservative Loan & Trust Company at Shawnee, Okl., hereinafter designated the corporation, and he was the active managing officer of such corporation, which was engaged in making and marketing real estate mortgage loans. It appears that this corporation had secured, sold, and assigned to investors two loans, referred to in the evidence as the Cummings loan and the Hutchinson loan. The Wichita Joint Stock Land Bank of Wichita, Kan., wrote to the corporation and inquired the amount necessary to take up these loans, and was informed by the corporation, in a letter signed by an assistant secretary, that the amount required was $9,188, if received by June 5, 1923. Said Wichita bank remitted this amount to the corporation by draft, which was cashed, and the proceeds deposited in the usual manner in the general fund of the corporation in which all moneys were carried. At the time this remittance was received by the corporation, it was insolvent and its account overdrawn. Soon thereafter the corporation was put in the hands of a receiver, and the moneys remitted by the bank was never applied to the purpose for which they were remitted, and was never paid to discharge the mortgages, and was a loss to the Wichita bank.
The assignments of error may be summarized as follows: First. Prejudicial statements of the trial court in the presence of the jury. Second. Errors in the instructions of the court. Third. Error in admitting evidence of other transactions, and failure to limit the application of such evidence. Fourth. The insufficiency of the evidence.
There is some merit in each of the contentions advanced. In the course of the trial, the trial judge, in ruling upon objections, made statements verging on comments upon the facts and weight of the evidence. Also some of the instructions are subject to criticism. There was also evidence of other transactions explaining the general course of business, and the instructions did not limit the application of such evidence. It is doubtful, however, if these errors, standing alone, would require a reversal of the case. As they need not arise upon another trial, and, in view of the conclusion we have reached upon the assignment of insufficiency of the evidence, we do not deem it necessary to discuss these other assignments.
The sufficiency of the evidence to establish the guilt of defendant is challenged. Indulging in the reasonable inferences and deductions from the testimony of the witnesses, it may be said that the evidence shows that on June 5, 1923, and for a considerable period of time prior defendant was secretary of the corporation, was a member of its board of directors, and was one of its active managing officers, the active head of the collection department, and had a voice in the policy and management of the corporation generally; that the money remitted by the Wichita bank to the corporation for the particular purpose of paying the two loans referred to was deposited to the credit of the corporation, and was never used for the purpose for which it was remitted. Defendant testified that he was secretary of the corporation and directed generally the collection department; that the business was of great volume, the corporation having, in addition to its main office at Shawnee, offices in Muskogee, Durant, McAlester, and Ada; that it operated in forty-five or more counties of the state, and had something like $16,000,000 of loans in force, consisting of 12,000 or 14,000 separate loans, and many cash items were received and paid out daily; that a considerable part of his duties was the sale of the loans to investors such as insurance companies, institutions, brokers, savings banks, etc.; that he frequently made trips North and East for the...
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