Gibson v. State, A-12542

• Decision Date: 30 July 1958
• Docket Number: No. A-12542,A-12542
• Citation: 328 P.2d 718,1958 OK CR 74
• Parties: 35 Lab.Cas. P 71,732 Joy GIBSON, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 718

328 P.2d 718

35 Lab.Cas. P 71,732

Joy GIBSON, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-12542.

Criminal Court of Appeals of Oklahoma.

July 30, 1958.

Syllabus by the Court.

1. Under 21 O.S.1951 § 1452, if any person being an officer, director, trustee, clerk, servant or agent of any association, society or corporation, public or private, fraudulently appropriates to any use or purpose not in the due and lawful execution of his trust, any property which he has in his possession or under his control by virtue of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, he is guilty of embezzlement.

2. To bring a prosecution within the provisions of 21 O.S.1951 § 1452, the information must plead facts showing the fiduciary relationship creating the trust and the breach thereof, and it is not sufficient to plead conclusions.

3. Where words or terms used in the statute have no technical or precise meaning which of themselves imply or define the offense, then the indictment or information must set forth the particular things or acts charged to have been done with reasonable certainty and distinctness.

4. In a prosecution for embezzlement as defined in 21 O.S.1951 § 1452, it is necessary to charge the fiduciary relationship existing between the accused and the owner of the property embezzled.

5. When larceny is committed by fraud or whether it is embezzled is determined with reference to the time when the fraudulent intent to convert the property to the taker's own use arises. In larceny, the criminal intent must exist at the time of the taking of the property, and it must be taken with an intent to deprive another thereof.

6. Where it appears that the charges in the information and the proof are at fatal variance, a conviction will be reversed.

7. Where the President of a labor union local is not charged with the duty of receiving or accounting for funds received by the union local and his only responsibility therewith is to countersign checks for withdrawal together with the Treasurer, who is made responsible by the Constitution and by-laws of the union for receiving and accounting for said funds, and the President of the union local contrives to get possession of the union local check book and writes and signs checks on the union account and forges the Treasurer's signature thereto with the intent of appropriating said funds to his own use, under such circumstances criminal intent existed at the time of the taking and the taking was without the voluntary consent or knowledge of the union local and the crime of larceny by fraud was committed for which the President of said union local may be prosecuted as well as for the crime of forgery, but not for the crime of embezzlement.

Appeal from the District Court of Pottawatomie County; J. Knox Byrum, Judge.

Plaintiff in error, Joy Gibson, was charged with the crime of embezzlement, convicted, and appeals. Reversed and remanded for a new trial.

Hendon & Hendon, Shawnee, Claude Hendon, Shawnee, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Robert A. Wilson, County Atty., Pottawatomie County, Shawnee, for defendant in error.

BRETT, Presiding Judge.

Plaintiff in error, Joy Gibson, defendant below, was charged by information in the District Court of Pottawatomie County, Oklahoma, with the crime of embezzlement of the sum of $5,113.27 from a labor union local No. 744 1, U. E.-C. I. O., she being the President of said local. She was tried by a jury, but the jury being unable to agree on the punishment, left the same to the trial court. The court assessed her punishment at one year in the state penitentiary and entered judgment and sentence accordingly, from which this appeal has been perfected.

The Attorney General has informed this Court he cannot sustain this conviction. He did not confess error, but referred the matter to the County Attorney of Pottawatomie County, from whom he has had no response. Under these conditions, it must be presumed the defendant's contentions are meritorious.

The facts upon which this prosecution was predicated are as follow. The defendant was President of union local No. 744 I. U. E.-C. I. O. in Shawnee, Oklahoma, from January 13, 1954, to February 9, 1956. During a portion of said period of time, one Sue Ann Mize was the Financial Secretary-Treasurer of said local. The Constitution and by-laws of said union setting forth the duties of the President are, to preside over all regular and special meetings of the local and the executive board, preserve order, and enforce the Constitution and by-laws of the union, to be an ex officio member of all committees, appoint certain committees, and sign checks jointly with the Financial Secretary-Treasurer. It is pertinent to note that at no place in the said Constitution and by-laws is the President of the union directed to receive and account for any moneys paid to the union. The record fails to disclose that at any time the President of the local acted in such capacity. To the contrary, the duties of receiving and accounting for the moneys paid to the local are described in the Constitution and by-laws as the responsibility of the Financial Secretary-Treasurer. The defendant, as President of the local, without authority, removed the check book of the union local from the desk in the union hall and kept it during the period herein involved. During said time, she wrote and cashed checks on the union account which bore her signature and the purported signature of the Financial Secretary-Treasurer, Sue Ann Mize. Sue Ann Mize testified the signatures on the twenty-six checks drawn on the union account in amounts ranging from $30 to $95 did not bear her signature. In order to keep the abstractions from becoming known, the defendant from time to time picked up the bank statements and would agree to bring them and the check book to the next meeting of the local, which she did not do. Some of the checks were labelled as loans of money borrowed from the union's funds by the defendant, but no such loans were authorized. This method of operation continued by these separate defalcations as charged in the information until a total sum of $5,113.27 was abstracted.

It is obvious why the Attorney General and the County Attorney have not been able to sustain this conviction as laid in the information under the provisions of 21 O.S.1951 § 1452. This section provides:

'If any person, being an officer, director, trustee, clerk, servant or agent of any association,...