Kelley v. People
| Decision Date | 14 June 1965 |
| Docket Number | No. 20804,20804 |
| Citation | 402 P.2d 934,157 Colo. 417 |
| Parties | Eugene L. KELLEY, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
James W. Heyer, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John P. Moore, Asst. Atty. Gen., Denver, for defendant in error.
Eugene L. Kelley, the plaintiff in error, was charged in an information with the embezzlement of $4183.32 from the Hill Oil Company while acting as its agent from December 15, 1961 to January 16, 1962. The trial was to a jury and he was found guilty. Kelley brings writ of error from the judgment entered on the verdict.
The Attorney General, while briefing with particularity the law applicable here, points out that he does not disagree with the defendant's position and that it is his conclusion that the People failed to prove that the defendant unlawfully converted money belonging to the Hill Oil Company.
The record discloses that Kelley operated a gasoline service station in Hugo, Colorado. He took over the management and operation of the station on November 6, 1961, under an agreement with the Hill Oil Company. By the terms of this arrangement, Kelley was to operate the station, and his wife was to operate the adjoining cafe.
The two gasoline storage tanks on the property were filled by the Company. The gas remained the property of the Company until it passed through the pumps into the customers' cars, at which time it became the property of the customers. The pumps were metered, and Kelley was to pay the Company, at the time of the periodic meter readings, a certain price for each gallon sold. Kelley was to retain the difference between the wholesale price charged him by the Company and the retail price per gallon which he received from his customers.
The meters were read, and Kelley accordingly paid the Company on November 15, 1961, November 30, 1961, and December 15, 1961. However, the Company was not paid for the readings taken on December 31, 1961 and January 17, 1962. The Company, thereupon, changed the locks on the station in the absence of the Kelleys and ordered them to stay out of the station. Thereafter, the Company filed charges with the District Attorney and the information charging Kelley with embezzlement resulted.
The evidence produced at the trial failed to establish several of the necessary elements of the crime of embezzlement; we, however, shall discuss only one of these failures, which, in itself, is fatal to the People's case. An essential element of the crime of embezzlement is that the property alleged to have been converted belong to another. Sparr v. People, 122 Colo. 35, 219 P.2d 317; Phenneger v. People, 85 Colo. 442, 276 P. 983; CRS '53, 40-5-16. It is at once important to note that the property alleged to have been embezzled here was not gasoline, the title to which remained in the Company until sale, but rather the money received by defendant for the gasoline.
The evidence established that, under the terms of the agreement between Kelley and the Company, Kelley was not an...
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