Morrison v. State
| Decision Date | 18 May 1990 |
| Docket Number | No. F-89-428,F-89-428 |
| Citation | 792 P.2d 1189 |
| Parties | Patricia MORRISON, Appellant, v. STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Patricia Morrison, Appellant, was charged with Embezzlement in the District Court of Stephens County, Case No. CRF-87-44, before the Honorable George W. Lindley, District Judge. Appellant was found guilty and sentenced to one (1) year imprisonment. From this judgment and sentence Appellant has perfected this appeal. AFFIRMED.
E. Mack Bedwell, Durant, for appellant.
Robert H. Henry, Atty. Gen., A. Diane Hammons, Asst. Atty. Gen., Oklahoma City, for appellee.
Patricia Morrison, Appellant, was tried by jury and convicted of the crime of Embezzlement (21 O.S.1981, § 1454) in Stephens County District Court Case No. CRF-87-44. The jury set punishment at one (1) year imprisonment, and the trial court sentenced accordingly. Each of Appellant's three (3) propositions of error are based on her fundamental claim that she could not be an agent of the City of Duncan for purposes of prosecution because by the terms of her contract with the city she was an independent contractor. We find she was in fact an agent and affirm.
On July 22, 1986, Appellant entered into a contract with the City of Duncan through which she became a concessionaire for the city at Lake Humphrey. Under the terms of her contract she was paid $150.00 a month to issue various camping and fishing permits, collect the appropriate fees and turn the fees in to the city on a monthly basis. Appellant did not turn in the fees on a monthly basis and on October 27, 1986, the city's finance director examined her permit books. The city demanded that Appellant pay one thousand eight hundred forty two and 50/100 dollars ($1842.50) within twenty-four hours. It was later determined that included in this sum was two hundred dollars owed by her predecessor. There was evidence presented that Appellant was acting as an agent for her predecessor and collecting the fees prior to becoming a consessionaire herself. Evidence presented at trial showed Appellant had failed to turn over $1643.00 in collected fees to the city during the time she was a concessionaire. Appellant attempted to make a partial payment which the city refused. The amount of this partial payment was not made known at trial.
Appellant first argues the information and proof are at fatal variance because she was not an agent of the city. Appellant's contract with the city by which she became a concessionaire states that no relationship of employer and employee exists between the city and the concessionaire and that the relationship is at all times that of independent contractor. The contract also provides that the appellant agrees to sell city permits and collect use fees on behalf of the city and that appellant shall be liable for the payment of these fees to the city on or before the 28th day of each month. In the jury instructions, given without objection, "agent" was defined as one who is given the authority to act for and in the name of another. (O.R. 45). Appellant does not argue she was not given the authority to act for and in the name of the city of Duncan. Rather she argues that because her employment relationship was one of independent contractor she cannot also be an agent. We reject this argument. Embezzlement is defined by statute as the fraudulent appropriation of property by a person to whom it has been entrusted. 21 O.S.1981, § 1451. Oklahoma has five distinct statutes under which a person may be charged with the crime of embezzlement. The dispositive issue in determining whether the charge of embezzlement is brought under the proper statute is the status of the person to be charged. Appellant was charged under 21 O.S.1981, § 1454 which provides:
If any person being a trustee, banker, merchant, broker, attorney, agent, assignee in trust, executor, administrator or collector, or being otherwise entrusted with or having in his control property for the use of any other person, or for any public or benevolent purpose, fraudulently appropriates it to any use or purpose not in the due and lawful execution of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, he is guilty of embezzlement.
The Information alleged Appellant was an agent of the city of Duncan.
The American Law Institute's Restatement (Second) of Agency defines the terms agency, principal, agent and independent contractor as follows:
Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.
The one for whom action is to be taken is the principal.
The one who is to act is the agent.
. . . . .
An independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other's right to control with respect to his physical conduct in the performance of the undertaking. He may or may not be an agent. Restatement (Second) of Agency §§ 1, 2 (3) (1958). (Emphasis added).
The Restatement goes on to explain how a person can be both an independent contractor and an agent.
One who contracts to act on behalf of another and subject to the other's control except with respect to his physical conduct is an agent and also an independent contractor. Restatement (Second) of Agency § 14N.
This dual status is further explained in Comment "a" to this section.
Independent contractor as agent. As stated in Section 2, "independent contractor" is a term which is antithetical to the word 'servant', although not to the word 'agent'. In fact, most of the persons known as agents, that is, brokers, factors, attorneys, collection agencies, and selling agencies are independent contractors as the term is used in the Restatement of this Subject, since they are contractors but, although employed to perform services, are not subject to the control or right to control of the principal with respect to their physical conduct in the performance of the services. However, they fall within the category of agents. They are fiduciaries; they owe to the principal the basic obligations of agency: loyalty and obedience .... Colloquial use of the term excludes independent contractor from the category of agent as a similar use excludes trustee, but in both cases there is an agency if in the transaction which they undertake they act for the benefit of another and subject to his control. Restatement (Second) of Agency, § 14 N, Comment "a". (Emphasis added).
The facts clearly indicate that Appellant was both an agent and an independent contractor. The City assumed some right to control Appellant's conduct and in performing her municipal function she clearly owed the city loyalty and obedience. Although this is an issue of first impression for this Court, we find that the jurisdictions of Montana and Idaho have addressed it squarely and reach a similar result. See State v. Holdren, 143 Mont. 103, 387 P.2d 446 (1963); State v. Compton, 92 Idaho 739, 450 P.2d 79 (1969); State v. Frederick, 208 Mont. 112, 676 P.2d 213 (1984). We find the State presented sufficient proof of agency, and that the Information properly charged Appellant under 21 O.S.1981, § 1454. Since the issue is not before us we expressly do not comment on the validity of the contract by which the city attempted to limit its civil liability arising from acts of the concessionaires.
Appellant next argues that her failure to pay to the city the permit and use fees gave rise to a civil action on the debt and not criminal liability for embezzlement. In support of this position she argues that the state failed to present evidence of any felonious intent. We note at the onset that we do not have the benefit of the State's position regarding the civil liability issue as the assistant attorney general chose not to address it. Nevertheless, Appellant's argument is not persuasive.
Absent a fiduciary relationship Appellant would be correct that a civil action on the debt would be the city's only remedy. However, in this case a fiduciary relationship existed by reason of the agency. Appellant was not indebted to...
To continue reading
Request your trial
-
World Pub. Co. v. White
......" 24. Title 10 O.S. Supp.1999 § 7307-1.2(A), see note 4, supra. 25. Title 21 O.S.1991 § 2; Morrison v. State, 1990 OK CR 33, ¶ 7, 792 P.2d 1189. 26. Morrison v. State, see note 25, 27. Parker v. State, 1996 OK CR 19, ¶ 19, 917 P.2d 980, cert. denied, 519 U.S. 1096, 117 S.Ct. 777, 136 L.E......
-
State ex rel. Oklahoma Bar Ass'n v. Dobbs
..." All crimes are statutory. World Publishing Co. v. White, 2001 OK 48, s 13, 32 P.3d 835, 843; Morrison v. State, 1990 OK CR 33, s 7, 792 P.2d 1189, 1192. 62. PRT Hearing Transcript, v. 2: 63. As mayor of the City, Johnson was also a trustee of the Public Works Authority. 64. Johnson was co......
-
Hill v. State
...A defendant's knowledge and intent can be proved by circumstantial evidence. See Billey, 800 P.2d at 743; Morrison v. State, 792 P.2d 1189, 1192-1193 (Okl.Cr.1990). Therefore, to support the present convictions the State must present sufficient evidence to prove, to the exclusion of every o......
-
Cheatham v. State
...circumstantial evidence, a jury may consider both the evidence and inferences reasonably deduced therefrom. See Morrison v. State, 792 P.2d 1189, 1193 (Okl.Cr.1990); Nguyen v. State, 769 P.2d 167 (Okl.Cr.1988), cert. denied, 492 U.S. 925, 109 S.Ct. 3264, 106 L.Ed.2d 609 (1989); Johnson v. S......