Gill v. People

Decision Date01 June 1959
Docket NumberNo. 18639,18639
PartiesJohn G. GILL, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error.
CourtColorado Supreme Court

John F. McGrath, Pueblo, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Denver, John W. Patterson, Asst. Atty. Gen., for defendant in error.

DOYLE, Justice.

Plaintiff in error, hereinafter called defendant, was convicted of the crime of embezzlement and was sentenced to the State Penitentiary in Canon City for a term of not less than seven nor more than ten years. He seeks review and reversal of that judgment.

The information contained three counts which charged embezzlement, larceny and larceny by bailee. All related to the same transaction and alleged that between September 15, 1955 and June 15, 1957, the defendant converted $964.40, the property of the Star-Journal Publishing Corporation. Trial was had to a jury and at the completion of the people's evidence, the defendant submitted a motion to require the prosecution to elect as between the several charges. This motion was granted and thereupon the District Attorney elected to stand on the embezzlement count and moved to dismiss the second and third counts which charged the larceny and larceny by bailee.

The jury returned a verdict of guilty on the first count and judgment and sentence was pronounced on that verdict.

The evidence at the trial disclosed that defendant had been employed by the Star-Journal Corporation during the period from September 15, 1955 until June 15, 1957 as an advertising solicitor. Throughout this period he had regularly called on the Poor Boy Market in Pueblo for the purpose of selling advertising. This latter business was operated by one Bernie Hicks and it was his usual practice to pay cash to the defendant at the time that he gave him an order. The defendant would customarily sign receipts 'Star-Journal, per J. Gill.' These were dated and would often be written on scrap paper rather than on a printed form.

Over the period in question advertising having a value exceeding $3,800 was sold to Hicks by the defendant. Receipts signed by defendant totalling $3,425.65 evidence the cash payments which were made at the time of the several sales. The amounts of the individual items differed but were usually $50, $60 or $35. Some were in the amount of $25, others were less and a few were $80. In eight instances checks were paid directly to the Star-Journal and in a total of 74 instances there were cash payments to the defendant. The total value of the checks was $405 and the total cash payments amounted to $3,425.65. Of this latter amount, $2,465.65 was turned in to the Star-Journal by defendant leaving a balance of $960 which had been withheld by him.

These facts were corroborated by the witnesses Bernie A. Hicks and his wife, Edna Hicks, and by the defendant himself, who admitted to both Frank Hoag, Sr. and Frank Hoag, Jr., officers of the Star-Journal Corporation, that he had failed to remit an amount approximating the $960 charged in the Information.

The shortage became apparent when Star-Journal collectors called on Hicks, advised him that his account was delinquent and sought to collect the amount which appeared to be owed. The defendant was then called in by Hoag, Sr. and readily admitted the shortage, promised to pay it back at once, stated that he had a check in an amount sufficient to cover this shortage and that he would bring it in the next day. However, he failed to do so and following his disappearance prosecution was commenced.

There is a conflict in the evidence concerning the exact authority of the defendant with respect to collection of money. Both Hoag, Sr. and Hoag, Jr., and the witnesses Neary and Jones, testified that the defendant lacked authority to collect money. Collections were customarily made by employees other than the salesmen. However, Mr. Hoag, Sr., the President of the Star-Journal Publishing Corporation, when asked on cross-examination whether the policy of the newspaper prohibited solicitors collecting advertising charges, said:

'A. Yes. Now my answer to that question is this--we have never laid down a policy that no advertising solicitors could collect money for advertising for the reason, suppose a solicitor comes to collect an ad and you want to pay him for that ad and he is authorized in that event to take the money and bring it in and turn it in, which many of them did.

'Q. Now--A. But those who collected that money turned it in.

'Q. Now, Mr. Hoag, that, however, is generally what happens, but is it against your rule? A. I don't say it's against the rule, for the reason I just cited. And if a man wants to put an ad in and pay for it or give it to the solicitor, the solicitor is authorized to bring it in, turn it in, which Mr. Gill did not do.'

Thus, the testimony was somewhat equivocal, it appearing that while defendant was not generally authorized to collect money he was not prohibited from doing so, his job being that of salesman, he nevertheless was authorized to bring in cash paid to him by customers. Also present in the record is the indisputable fact that numerous payments totalling more than $2,400 were in fact received by Gill and turned in by him and accepted without protest by the Star-Journal.

The several points presented are summarized as follows:

1. That the evidence fails to establish beyond reasonable doubt the existence of the requisite agency relationship whereby defendant was intrusted with money within the contemplation of the embezzlement statute. Defendant in effect claims that since he had no right to possession of the money in the first place the funds which he misappropriated were stolen rather than embezzled and were taken from Hicks rather than the Star-Journal.

2. That the evidence discloses numerous separate and distinct transactions which constitute duplicity in the evidence. The argument is that once the fact of duplicity was apparent defendant was entitled to an order quashing the information. A timely motion was not made at the trial, but defendant requests that the Court notice it nevertheless.

3. That the instructions were misleading and prejudicial.

1. The sufficiency of the evidence to prove agency and breach of trust.

As indicated, the position of the defendant is that if he was not expressly authorized to collect monies, he did not convert the property of the Star-Journal and at most he had mere custody of this money rather than possession of it and this would make his offense larceny rather than embezzlement. The Attorney General takes the position that the law dealing with this question is in such hopeless conflict that he is unable to say whether or not the evidence sustains the conviction. We quote from his brief:

'* * * After studying all of the cases in this jurisdiction and many if not all of the cases from other jurisdictions, this writer came to the conclusion that the law relating to embezzlement is in hopeless and irreconcilable conflict. Professor Austin W. Scott, Jr. is the author of an article appearing in 23 Rocky Mountain Law Review 446 wherein he discusses this conflict and cites many cases. The writer hereof can do no more than refer this Court to that excellent article with which we agree.'

The Attorney General recommends that the sounder rule 'appears to be' that where a person lawfully obtains property of another, whether he has possession or custody of it, regardless of whether he has authority or not, he should be held accountable as an embezzler.

We are of the opinion that the evidence is sufficient to sustain the element of embezzlement which is here questioned and due to the seeming confusion and conflict we shall outline the reasons for our conclusion. The embezzlement statute involved here (C.R.S. '53, 40-5-16) provides in pertinent part as follows:

'Embezzlement--what constitutes. * * * If any officer, agent, clerk or servant of any incorporated company, or if any clerk, agent, servant or apprentice of any person or partnership or association of persons or society; or if any attorney at law, collector or other person who in any manner receives or collects money or any other property for the use of or belonging to another, embezzles or fraudulently converts to his own use, or takes, and secretes with intent to embezzle or convert to his own use, without the consent of his company, employer, master or owner of the money or goods collected or received, any money, goods or property of such company, employer or master, or another, or which is partly the money, goods or property of such company, employer, master or another, and partly the property of such officer, agent, clerk, servant, attorney at law, collector, or other person, which has come into his possession or under his care in any manner whatsoever, he shall be deemed guilty of larceny, and punished accordingly; and in a prosecution for such offense it shall be no defense that such officer, agent, clerk, servant, attorney at law, or other person was entitled to a commission out of such money or property, as commission for collecting or receiving or otherwise dealing with the same for and in behalf of the owner thereof or for any other reason.' (Emphasis supplied.)

Must a defendant have express authorization from his principal to possess the property in order to satisfy the requirements of the above statute? We conclude that he does not. This statute must be construed in the light of the acknowledged and well known purpose which attended its enactment. Embezzlement was not recognized at common law and the corollary offense, larceny, embraced only those thefts which were accompanied by trespass in the original acquisition and possession. It was first recognized in England when Parliament enacted the statute so as to embrace non-trespass thefts. Moody v. People, 65 Colo. 339, 176 P. 476 declares that it was enacted in...

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