Hancey v. United States
| Decision Date | 06 January 1940 |
| Docket Number | No. 1897.,1897. |
| Citation | 108 F.2d 835 |
| Parties | HANCEY v. UNITED STATES. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Willard Hanson, of Salt Lake City, Utah, for appellant.
Dan B. Shields, U. S. Atty., of Salt Lake City, Utah (John S. Boyden and Scott M. Matheson, Asst. U. S. Attys., both of Salt Lake City, Utah, on the brief), for appellee.
Before PHILLIPS, WILLIAMS, and HUXMAN, Circuit Judges.
This is an appeal by Evan Homer Hancey from a conviction by a jury in the United States District Court for the District of Utah of the crime of embezzling funds from the Cache Valley Banking Company, a Utah Corporation. The indictment charged four separate counts of embezzlement. Appellant was found not guilty on Counts 1, 3 and 4, and guilty on Count 2.
Appellant had been an employee of the bank for over 19 years. He was assistant cashier and trust officer. One of his duties was the issuing of cashier's checks. The records of the bank disclose that on February 23, 1938, he issued a cashier's check payable to General Motors Acceptance Corporation for $35 to apply on his account with that company. The records further reveal that on the day in question a number of cashier's checks were issued, totaling $587.50. The credit ticket for that day, prepared by appellant, showed a total of issued cashier's checks of $552.50, which was the exact amount issued less the $35 check issued to pay appellant's own account.
H. R. Hurren, cashier of the bank, testified that in March, 1939, appellant had a conversation with him, in the presence of M. W. Starbuck, George Muir and F. K. Porter, bank examiners. In this conversation, appellant stated that he issued the cashier's check payable to General Motors Acceptance Corporation for $35; that he did not pay for it on that day, but did pay for it on February 28, 1938, when he received his semi-monthly salary check. Later appellant made substantially the same statement to Enos Sanberg, special agent for the Federal Bureau of Investigation of the Department of Justice. The records of the bank do not disclose that the $35 has ever been repaid.
Appellant, testifying in his own behalf, stated that the check was actually issued after business hours on February 21; that the next day was a holiday, so he dated the check February 23; that he made out a credit ticket to cashier's checks for the amount of $35 in cash; that he placed this amount, which he had saved from his last previous pay-check, along with the credit slip in his drawer in the cage; that he didn't remember when he made the entry of this credit; that he forgot about crediting the account until the check came in, and that it was then that he made the entry. He denied the testimony given by Hurren and Sanberg.
Three assignments of error are presented for consideration:
First: That the trial court erred in permitting the witness Hurren to testify to the conversation had with appellant, for the reason that the corpus delicti had not been proved, and that there was no proof whatever of the corpus delicti.
Second: That the court erred in refusing appellant's requested instructions.
Third: That there was no substantial evidence introduced at the trial tending to show that defendant was guilty of embezzlement as charged.
In every criminal prosecution the burden rests upon the government to prove the corpus delicti — that is, that the crime charged has actually been committed and that the accused committed the crime. By corpus delicti is meant the body of the crime; that is, all the elements necessary to constitute the crime charged. Green v. State, 7 Okl.Cr. 194, 122 P. 1108; People v. Grill, 3 Cal.App. 514, 86 P. 613; Goldman v. Commonwealth, 100 Va. 865, 42 S. E. 923.
To constitute embezzlement there must be a fraudulent intent to deprive an owner of his property, coupled with an unlawful appropriation of the same. United States v. Breese, D. C., 131 F. 915; Moody v. People, 65 Colo. 339, 176 P. 476, 478; Ex parte Huston, 27 Idaho 231, 147 P. 1064; State v. Marco, 32 Or. 175, 50 P. 799.
The record shows that Hancey issued a cashier's check to make his own installment payment due General Motors Acceptance Corporation on his automobile; that such check was paid out of the funds of the bank upon its presentation; that there was a shortage in cashier's check account on February 23, 1938, of $35; that there is no record that this amount was ever repaid. This testimony clearly establishes all the elements necessary to constitute the crime of embezzlement and establishes the corpus delicti. It follows that the testimony of Hurren, Starbuck, Muir, Potter and Sanberg concerning Hancey's admissions was admissible.
Appellant requested the court to give the following instruction: ...
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