Le Master v. People
| Decision Date | 03 March 1913 |
| Citation | 54 Colo. 416,131 P. 269 |
| Court | Colorado Supreme Court |
| Parties | LE MASTER v. PEOPLE. |
Rehearing Denied April 7, 1913.
Error to District Court, City and County of Denver; Greeley W Whitford, Judge.
D. F Le Master was convicted of embezzlement, and he brings error. Affirmed.
Thomas M. Morrow, of Denver, for plaintiff in error.
Benjamin Griffith, Atty. Gen., and George D. Talbot, Sp. Counsel, of Denver, for the People.
The plaintiff in error was convicted of embezzling $3,700 from the D. F. Le Master Brokerage Company, a corporation. He brings the case here for review upon error.
It is earnestly urged that the evidence is insufficient to sustain the verdict. The defendant contends that, while he appropriated the money, he was guilty of no crime, for the reason that he was entitled to it as and for salary for services previously rendered to the corporation, and that he had the consent of the company to so apply the money. The people claim, first, that the defendant had been paid his salary in full, and that the claim of $3,700 for back salary was a trumped-up claim; second, that if the company was indebted to him for salary, it being insolvent to his knowledge, and owing various parties large amounts for flour which it had but recently purchased on credit and sold for cash, it was fraudulent for him to thus convert the money so due them to his own use, and that, even assuming he was a creditor, because he was also a director, an officer, and its manager, his duty was to hold this money in trust for all the creditors; that upon account of these facts and the circumstances under which he appropriated it he was guilty of embezzlement. It is unnecessary, in an opinion, to analyze or set forth in detail the evidence pertaining to the transaction. It is sufficient to state that we have given it careful consideration, and are of the opinion that there is sufficient evidence to justify the verdict.
Prior to the trial, depositions of witnesses residing in Kansas were taken in the presence of the accused, pursuant to a waiver of notice by him. These were taken under the provisions of general sections 7277-7279, Revised Statutes 1908. When the district attorney offered to read these depositions to the jury, counsel for the defendant objected claiming that no proper foundation was laid; that there was no showing that the witnesses could not be produced. The objection was overruled. We find no error in this respect. Section 7278, supra, provides 'that such deposition shall not be used if, in the opinion of the court, the personal attendance of the witness might be procured by the prosecution or is procured by the accused.' It stands admitted that these witnesses were residents of Kansas; their depositions were taken in order that they might return to that state. By the ruling it was evidently the opinion of the court that the personal attendance of the witnesses might not be procured by the prosecution; there was no offer by the defense to produce them. The statute says, 'if, in the opinion of the trial court,' etc.; we find no abuse of the discretion exercised.
Complaint is made to the admission in evidence of certain letters purporting to have come from the D. F. Le Master Brokerage Company. It is claimed there was no attempt to identify the signature as the handwriting of D. F. Le Master. They were received in the regular course of mail; their contents were in connection with a general line of transactions between the corporation (of which the plaintiff in error was the controlling factor) and the sundry witnesses, and were introduced principally for the purpose of disclosing the transactions which led up to and disclosed from what source the corporation received the money which the jury found was thereafter embezzled by the defendant. We do not understand that it requires the testimony of an expert in handwriting to make admissible letters of this character. We think they were sufficiently identified for the purposes offered.
Complaint is made to the admission in evidence of carbon copies of letters written by witnesses in reply to those received from the defendant's company, either written or dictated by him. Upon his objections to the copies the defendant was requested to produce the originals; he stated his inability to do so, and from his counsel's statements it appears that the allowance of time after the request was made would have been of no assistance in this respect. The witnesses testified that the carbon copies were made at the same time, and that the originals were properly mailed, etc. Under these circumstances we think the copies were properly admitted.
A Mr. Grandt testified that he had been employed by the D. F. Le Master Brokerage Company. An impression copy book was placed in his hands, which he identified as belonging to the company, and he referred to copies of various letters therein, stating that the originals, of which the impressions in the book were copies, had been written and mailed to various persons and companies; that he wrote the greater majority of the letters at the dictation of the defendant. The pages in this book thus referred to by the witness were offered in evidence. It is claimed that this was prejudicial error, as no effort was shown to have been made to obtain the originals. We do not think so. The object of this testimony was to show the criminal intent of the defendant. The letters were shown to have been mailed to sundry people and companies in other states, who were beyond the jurisdiction of the court. The book contained impression copies taken at the time; we think this sufficient without further showing to justify their admission. This was, in substance, the defendant's impression book of his own letters. It contained declarations against interest, and for this purpose was properly admitted. D. & R. G. R. R. Co. v. Wilson, 4 Colo.App. 355, 36 P. 67.
A certified copy of the annual report of the D. F. Le Master Brokerage Company, filed in the office of the Secretary of State March 2, 1910, was offered in evidence over the objection of the defendant. We find no objection to this evidence. It likewise went to show the criminal intent of the defendant; if otherwise, it was harmless error.
The books of the D. F. Le Master Brokerage Company were properly admitted in evidence, as well as the defendant's salary account therein, showing what he had been paid, etc. All had a bearing upon his contention that he had, in good faith, appropriated this $3,700 to his own use upon account of salary. This line of testimony was especially applicable when it is considered that this was practically a one-man corporation.
It is claimed that the books of the company were not properly identified. J. F. Spencer testified that he was the trustee in bankruptcy of the D. F. Le Master Brokerage Company; that as such trustee he had the books of that company; and that he recognized the books in the court before him as the books of the company. A Mr. Grandt testified that he had been employed by the company; that the defendant was in charge of its affairs; and that he recognized the books in court as the books which he saw while employed by the company. We think the books were sufficiently identified.
Many exceptions were taken to the evidence of E. D. Kellogg; he had been in the employ of the D. F. Le Master Brokerage Company just prior to the time it went into bankruptcy. It is claimed that while thus employed he was engaged in giving alleged information to the attorneys for certain Kansas millers from whom this company purchased flour; that just before it went into bankruptcy Kellogg was discharged; that he was immediately taken to Kansas and there supported and maintained by the Phillipsburg Milling & Elevating Company; that this concern was responsible for the defendant's prosecution; and that this witness swore to the original information in this case. Unquestionably Mr. Kellogg's testimony was very damaging to the defendant in disclosing his criminal intent, but whether or not his evidence was manufactured, as claimed, was for the...
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