Drake v. State

• Decision Date: 03 January 1939
• Docket Number: Criminal 865
• Citation: Drake v. State, 53 Ariz. 93, 85 P.2d 984 (Ariz. 1939)
• Parties: LEE W. DRAKE, Appellant, v. STATE OF ARIZONA, Respondent
• Court: Arizona Supreme Court

85 P.2d 984

53 Ariz. 93

LEE W. DRAKE, Appellant, v. STATE OF ARIZONA, Respondent

Criminal No. 865

Supreme Court of Arizona

January 3, 1939

APPEAL from a judgment of the Superior Court of the County of Yuma.Henry C. Kelly, Judge.Judgment affirmed.

Messrs Windes & Clark and Mr. Raymond N. Campbell, for Appellant.

Mr. Joe Conway, Attorney General, and Mr. Albert M. Garcia, Assistant Attorney General, for the State.

OPINION

ROSS, C.J.

Lee W Drake was convicted of embezzling $13.17, the property of the state, and he has appealed.

The charging part of the information reads as follows:

"The said Lee W. Drake on or about the 13th day of April, 1937 and before the filing of this information, at, and in the County of Yuma, State of Arizona, was then a public officer, to-wit; a duly appointed, qualified and acting agent of the State Tax Commission of Arizona, which said commission was duly created and then and there existing under and by virtue of the laws of the State of Arizona, among other things, for the purpose of collecting the privilege sales tax by and through its commissioners and agents, and then and there by virtue of his said appointment and his said office and trust as such agent as aforesaid of the State Tax Commission of Arizona, there came into the possession of the said Lee W. Drake and under his control from one Cirilo Salas for and as a privilege sales tax, $13.17, lawful money of the United States and the personal property and public funds of the State of Arizona, and while said money and personal property was so in his possession and under his control by virtue of his said appointment and his said office and trust as such agent, as aforesaid, of said State Tax Commission of Arizona, he, the said Lee W. Drake, then and there, to-wit; on the said 13th day of April, 1937, at and in the said County of Yuma, State of Arizona, did wilfully, unlawfully, feloniously, and fraudulently, appropriate the said money and personal property to his own use, not in the due and lawful execution of his said trust as such agent, as aforesaid of the said State Tax Commission."

The essential facts to a consideration of the points raised are as follows:

The Excise Revenue Act of 1935(Chapter 77), which is generally known as the Privilege Sales Tax Law, imposes the duty of collecting the tax from taxpayer upon the State Tax Commission, and authorizes the commission to appoint agents (and other employees) to act for and under it in the performance of its duties in that respect (sec. 24, art. 2).Such agents may examine any books, papers, records, or other data bearing upon the correctness of any taxpayer's return or for the purpose of making a return where none has been made, as required by the act(sec. 25, art. 2).The commission appointed defendant one of its field agents with authority to collect and receipt for taxes and as such agent, on or about April 13, 1937, defendant waited upon Cirilo Salas, who had a small mercantile business in Yuma county.At the time Salas was in arrears for taxes for October, November and December, 1936, and January and February, 1937.The defendant examined Salas' books and invoices and such other data as were available, and made out, or assisted in the making of, two statements for the taxpayer Salas to sign and verify.One of such statements was for the period from October 1, 1936 to and including February 28, 1937, and showed that Salas owed the state in taxes $9.97 and penalties thereon in the sum of $1.99.The other statement was for the month of March, 1937, and showed that Salas owed the state for that month taxes in the sum of $1.87, or all told that he owed the state $13.83.Both these statements were signed by Salas and verified before the defendant, who was authorized by the act to administer oaths (sec. 25).The defendant then informed Salas that he owed the state forty-odd dollars.Salas had only $27 in cash and this sum he gave to defendant.He thought the excess over $13.83 was a fine for delinquency.The defendant thereafter transmitted to the State Tax Commission the two statements above described and the sum of $13.83 to cover the taxes and penalties owed the state up to April 1, 1937, but did not account for the sum of $13.17, the balance of the $27.

Over the objection of defendant, the state was permitted to introduce evidence of other acts of a very similar nature committed by defendant in the same community and about the same time.It appears he would exhibit his official badge to a taxpayer, ask for his books and records, examine them and advise the taxpayer he was behind in his taxes.He would demand that the taxpayer give him a certain sum in cash and would not accept a check.Two such merchants who gave him money were Chinese and one a Mexican, who apparently were made to believe they would be closed out or fined.A Mr. Joe Ruby under some such apprehension gave him $50 cash, and a few days later $25 for a book to keep his accounts and instructions as to how to keep them.

Upon the facts as above set forth, the jury found defendant guilty.He contends, however, that such facts, if admitted to be true, fail to show that he is guilty of embezzlement.He argues that though it be conceded that he collected from Salas $27 when the latter owed the state only $13.83, and that he appropriated the balance of $13.17 to his own use, it does not show him to be an embezzler under the statute defining embezzlement.Sections 4764and4765,Rev. Code 1928.These two sections are a condensation of sections 500-506, Penal Code of 1913, and for the purposes of this case may be treated as having the same meaning.We have heretofore held that the elements necessary to establish embezzlement are: (1) the trust relation between the owner of property and the person accused of embezzlement; (2) the accused must have obtained possession or control of the property by virtue of the trust relation; and (3)he must have breached his trust by the fraudulent appropriation of the property to a use or purpose, not in the due and lawful execution of his trust.Hinds v. Territory,8 Ariz. 372, 76 P. 469.The relation out of which the crime grows is a fiduciary one.Any person standing in a confidential or trust relation to another and who by reason thereof comes into possession or control of the latter's property may embezzle it by fraudulently converting it to a use or purpose other than the one intended.Defendant does not refute or question these settled principles of the law but he says there is a failure of proof in that the evidence shows the $13.17 he is accused of embezzling never at any time became the property of the state or came into its control or possession.

We have held that ownership as alleged in an embezzlement, indictment or information must be established by the evidence (Kendall v. State,38 Ariz. 314, 299 P. 1029), so the point made is important.However, a qualified ownership is sufficient.Sias v. Territory,11 Ariz. 175, 89 P. 539.

Section 21, article 2, of the Excise Revenue Act of 1935 provides that the tax may be paid to the commission by a bank draft, check, cashier's check, money order, or money.We take it that the payment by Salas to the defendant was a payment to the commission.Sections 24 and 25, supra, provide that agents appointed by the commission shall serve under and act for the commission and have the same visitorial powers as the commission.Therefore, defendant in demanding, accepting and receipting for Salas' taxes was performing a duty enjoined on his by the Excise Revenue Act, and any excess over and above the amount actually owed by the taxpayer received by defendant should have been accounted for as provided in section 26, article 2, of the act.By the provisions of such section, the overpayment should have been applied to overdue taxes, if any, or credited to future taxes, or refunded to the taxpayer, in any of which events the state's qualified ownership would have been established.Actually the excess was not ascertained by the tax commission and carried in its records as the law provides, because it was not reported by defendant.The funds were, however, constructively in the state's possession.

He collected the excess tax under the claim and pretense that it was due and owing the state and we think he should be held in this proceeding estopped to deny the truth of such claim and representation, however false they may have been.

In Yuma County v. Wisener,45 Ariz. 475, 482, 46 P.2d 115, 117, 99 A.L.R. 642, an action by the county against the clerk of the superior court to recover a sum of money which the clerk and collected as fees of his office, we said:

"There can be no question that if defendant by word or deed caused applicants for a marriage license to believe that in order to obtain such license the law required that the $2.50 in question be collected by him as clerk of the court, that he was securing such money under color of office, as the words are generally understood, and it is the usual rule that where a public officer obtains money under color of office, which he had no legal right to collect, that he is not permitted in a suit to recover such sums, either from himself or his bondsmen, to contend that the state has no right to recover the money from him because it had not authorized him to collect it from the citizens whom he had deceived in regard to the law.[Citing cases.]"

This was said in a civil action, but it seems that the same rule is applied by some of the courts to criminal procedure also.It is said:

"Some courts have held that one who has received money or property under color of authority is guilty of embezzlement for converting it to his own use, although he acted without authority, or in excess...