Cliff v. People

• Decision Date: 02 July 1928
• Docket Number: 11896.
• Parties: CLIFF v. PEOPLE.
• Court: Colorado Supreme Court

+269 P. 907

84 Colo. 254

CLIFF v. PEOPLE.

No. 11896.

Supreme Court of Colorado

July 2, 1928

Error to District Court, Routt County; Charles E. Herrick, Judge.

Allen Cliff was convicted of embezzlement, and he brings error.

Affirmed.

Paul P. Prosser, of Denver, and W. C. Reilly, of Steamboat Springs, for plaintiff in error.

William L. Boatright, Atty. Gen., and William W. Gaunt, Asst. Atty Gen., for the People.

BUTLER J.

Allen Cliff, hereinafter referred to as the defendant, was found guilty of embezzlement, and was sentenced to imprisonment in the penitentiary. He claims that reversible errors were committed.

1. It is claimed that the prosecution was under section 6734 of the Compiled Laws (act of 1907); that that section, so far as it relates to bankers, was impliedly repealed by the act of 1913 (C. L. § 2675). This objection was made first by a motion to quash the information, and was renewed several times during and after the trial. The act of 1907 relates to the crime of larceny by embezzlement. It is a general statute on that subject. The act of 1913 is a special statute relating only to banks and banking. It makes embezzlement by a banker a felony regardless of the amount embezzled (C. L. § 2740) whereas, under the act of 1907, whether it is a felony or a misdemeanor depends upon the amount embezzled (C. L. §§ 6734 6719, 6738). The maximum penalty under the act of 1913 is confinement in the penitentiary for 20 years and a fine of $2,000 (C. L. § 2740); whereas, under the act of 1907, the maximum penalty that can be imposed is confinement in the penitentiary for 10 years. It clearly was the intention of the Legislature to withdraw from the operation of the earlier and general act the crime of embezzlement by bankers and place it in a special class by itself. This being true, it follows that, so far as bankers are concerned, the act of 1913 supersedes and impliedly repeals the act of 1907.

2. Is the information sufficient under the act of 1913? The defendant claims that it is not. Section 23 of that act (C. L. § 2675) provides:

'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 information charges:

'That Allen Cliff, late of the county of Routt, and state of Colorado, on or about the 1st day of October in the year of our Lord one thousand nine hundred and twenty-six at and within the county and state aforesaid then and there being an officer, to wit, president of the Routt County Bank, a corporation then and there duly incorporated and existing under and by virtue of the laws of the state of Colorado, did then and there without consent of the said Routt County Bank fraudulently and feloniously embezzle and convert to his, the said Allen Cliff's, own use, the sum of $4,000 in money of the value of $4,000 of the personal property and moneys belonging to and in possession of the said Routt County Bank with the intent to steal the same, which said money was then and there the subject of larceny and came into the possession of said Allen Cliff by virtue of said office, and so in the manner and by the means aforesaid, he, the said Allen Cliff, did then and there feloniously and fraudulently steal, take and carry away the said $4,000 of the value of $4,000 of the personal property, goods, chattels and moneys belonging to and in the possession of the said Routt County Bank, contrary to the form of the statute,' etc.

(a) It is said that the information is defective because it does not allege that the act was committed with intent 'to deceive, injure, cheat, wrong and defraud.' Funds may be abstracted or misapplied without any intent to deceive, injure, cheat, wrong, or defraud. It may be done innocently. It is only when such specific intent exists that the act comes within the provisions of section 2675; hence, where abstraction or misapplication is charged, it is necessary to allege such specific intent. But where embezzlement is aptly charged, it is done in words that sufficiently charge the criminal intent. The information in the present case sufficiently charges the intent to injure, wrong, and defraud the bank. Even where abstraction or misapplication of funds is charged it is not necessary to allege an intent to deceive, injure, cheat, wrong, and defraud. An allegation that the defendant had an intent to do any one of those things is sufficient. The statute is in the dislunctive. The information is not open to the objection urged.

(b) Another contention is that the information is insufficient because the facts are alleged inferentially, and do not clearly indicate with which offense, embezzlement or larceny, the defendant is charged. We cannot sustain these objections. The information charges embezzlement with great particularity, and in terms so plain that the nature of the offense may be easily understood, not only by the defendant, but also by the jury. That is sufficient. C. L. § 7062; Sarno v. People, 74 Colo. 528, 223 P. 41. That they did understand the nature of the offense charged there can be no doubt. Objections to technical defects that do not tend to prejudice the substantial rights of the defendant on the merits are not encouraged. C. L. § 7103; Balfe v. People, 66 Colo. 94, 179 P. 137; Henry v. People, 72 Colo. 5, 209 P. 511; May v. People, 77 Colo. 432, 435, 236 P. 1022; Gizewski v. People, 78 Colo. 123, 239 P. 1026; Fries v. People, 80 Colo. 430, 252 P. 341; Koontz v. People, 82 Colo. 489, 263 P. 19.

3. Error is said to have occurred in the admission and rejection of evidence.

(a) Certain bank books and memoranda were admitted in evidence. The defendant complains that as the memoranda and the entries in the books are not in the handwriting of the defendant, they were inadmissible because not shown to have been made at the direction or with the knowledge of the defendant. Such direction and knowledge need not be proven by direct evidence; circumstantial evidence is sufficient. The bank was located in a small town, whose population ranged between 967 in 1920 to about 1,400 in 1927. The estimated population in 1924, according to the Colorado Year Book, was 1,060. The business transacted by the bank was limited. The active office force, we infer from the record, consisted of the president (the defendant), the cashier (the defendant's brother), and two young women--one the bookkeeper, and the other, according to the bank reports, the 'clerk.' The reports do not show that there was any teller. There were frequent meetings of the directors. With the exception of several meetings in 1920, the defendant attended all meetings of the stockholders and directors up to and including the directors' meeting of May 11, 1926, and signed the minutes of those meetings. At many of the meetings the affairs of the bank were discussed. During the entire time that the defendant was president numerous resolutions were passed giving the defendant directions concerning the conduct of the business. For example, he was cautioned several times to refuse any further loans until business conditions should improve; was directed to resume the making of loans, 'which in his judgment would be desirable'; was authorized to withdraw bonds from the treasury of the United States; was authorized repeatedly to extend credit to certain applicants for loans, to charge certain notes to profit and loss, and to purchase additional notes from another bank; and was instructed twice to withdraw bonds from the 'board of trustees.' He reported repeatedly at meetings of stockholders and directors the conditions relative to the bank's business. He signed and swore to the reports made to the bank commissioner. He was the one to whom the school district officer delivered certain bonds, and from whom such officer unsuccessfully demanded the return of four bonds belonging to the district. From the testimony of his brother, it would seem that the brother, though he was the cashier, was ignorant of some of the transactions involved in the case. The by-laws provide that the president shall be 'the chief executive officer of the bank, and shall administer all its business and affairs under the direction of the board or the executive committee.' The evidence shows that the defendant was not a mere figurehead, but was in fact the active manager of the bank's affairs. Two of the entries in the books were made from deposit slips that were in the handwriting of the defendant. The inference is unavoidable that all the memoranda and the book entries were made under the defendant's supervision, at his direction, and with his knowledge. They were properly admitted in evidence. Brown v. First National Bank. 49 Colo. 393, 113 P. 483; Le Master v. People, 54 Colo. 416, 131 P. 269.

(b) The so-called teller's balance book had on the margin penciled notations purporting to identify a date and an item of $4,000 appearing on the book. In the light of the evidence with reference to the transactions, these notations could not have prejudiced the rights of the defendant. Besides, the court instructed the jury that the notations are no part of the record and are not to be considered by the jury. We cannot sustain the defendant's objection based upon the presence of these notations.

(c) When the bank commissioner's expert accountant examined the accounts of the bank, he found a file containing a separate compartment for each day. In these compartments were kept the cash item slips for each day. Upon removing the slips from the file, the accountant made upon each slip a penciled...