Nolan v. State

• Decision Date: 09 May 1957
• Docket Number: No. 155,155
• Citation: 213 Md. 298,131 A.2d 851
• Parties: John S. NOLAN v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 298

213 Md. 298

131 A.2d 851

John S. NOLAN v. STATE of Maryland.

No. 155.

Court of Appeals of Maryland.

May 9, 1957.

Herbert Myerberg, Baltimore (M. William Adelson, Baltimore, on the brief), for appellant.

Alexander Harvey, II, Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., and Alger Y. Barbee, State's Atty. and Leonard T. Kardy, Deputy State's Atty., Montgomery Co., Rockville, on the brief), for appellee.

Before BRUNE, C. J., and COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ.

COLLINS, Judge.

The defendant, appellant, John S. Nolan, and Mrs. Mary V. Biggs were jointly indicted on November 24, 1953, in an indictment containing two counts. The first count charged them jointly with statutory Embezzlement, and the second count with Larceny After Trust. The second count was abandoned during the trial of Nolan. From a judgment and sentence on a verdict of a jury finding Nolan guilty of embezzlement of $2,592.94 from Federal Discount Corporation, Inc., (Federal), he appeals.

Mr. Benjamin W. Abrams, President of Federal, testified in part as follows. Nolan was originally hired by Federal in September, 1951, when its offices were located in Washington, D. C. By contract he was guaranteed $10,000 per year. When his contract ran out his salary was reduced to $125 per week. In Washington, Federal bought up conditional contracts of sale from automobile dealers. In August, 1952, its offices were moved to Silver Spring where it qualified under the Maryland law in order to do a small loan business. Although Mr. Abrams did not work in the office he visited there frequently. Defendant was manager of the office where there were two other employees, Joseph C. Lauer and Mrs. Mary V. Biggs. Nolan, as manager, was responsible for everything that went on in the office. He opened all the mail, looked at the money and checks, passed on loans, and received payments in the office. He was the only one of the three employees who was bonded. Lauer collected delinquent accounts. He was the outside man. On the recommendation of Nolan, Mrs. Biggs was employed. The figures were compiled by Nolan and Mrs. Biggs. Her duties were primarily that of cashier. She also entered the payments, made out daily report sheets and balanced out those sheets. Copies went to him, the accountant, and one copy remained in the office. He had seen Nolan and Mrs. Biggs working together on these sheets. After Federal made a loan it would be discounted with various banks. The note would be sent to a bank and Federal would immediately receive seventy percent of the amount of the note. The balance would be paid as the customers made their payments. In Federal's office at the end of the day the various payments made by the customers would be separated, part to be deposited the next day in Federal's bank account, and part to be sent to the bank which had discounted the notes. Mrs. Biggs would count up the receipts and compare them with the cash or checks she had in the cash drawer. After the payments had been separated and verified, the cash drawer, provided by Federal, containing the separated payments and receipts would be placed in Federal's safe and the safe locked. The next morning Federal's bank deposits would be removed from the safe and deposited in the bank. Nolan quit his job on November 2, 1952, when he was instructed not to take business from an automobile dealer named Metcalf. Mrs. Biggs quit the same day. Mr. David Gruber, an accountant, was called in to audit the books the same day. As a result the shortages were discovered.

The principal witness for the State was Mrs. Biggs, who had been employed by Federal in October, 1951, when the office was in Washington. She had been promised immunity by the State if she would testify against Nolan. She said that from October 20, 1952, through October 31, 1952, the dates charged in the indictment, and also at other times, Nolan, the manager and supervisor of the office, wrote receipts and received money from customers who had borrowed from Federal. She received some of the collections, as did Mr. Lauer, Mr. Abrams, the President, and Mr. Wolk, the Vice-President, when they were in the office. Also, quite a number of payments came through the mail which Nolan opened. He would match the payments with the account cards, write receipts and put these in a compartment in the cash drawer. She prepared the daily report sheets which showed the collections during the day. Nolan would check these. She was not the cashier but merely a clerk. The sheets were made up from the account cards and the receipts of cash and checks. An hour before closing time every afternoon she balanced out the cash drawer. She would then run a tape on the adding machine to verify that every receipt had been posted. From that she would substract any checks or money orders in the cash drawer, and the difference between those two figures would give the amount of cash which would go in the deposits to balance out each day. The sheets were not made up until the following day when she would take them to Nolan to check and would give him a recap of the collections. While in the office in Washington in December, 1951, Nolan decided that he wanted two watches, one for her and one for himself. He did not have the money to get these and finally he thought of manipulating Federal's accounts. His scheme was that after she had balanced her cash drawer he would go over the sheets with her. He would tell her to take out of the cash an odd amount, such as $251.24, an amount that could not be checked back through the receipts to pinpoint specific accounts. Under his instructions she would then rerun the tape to show the short additions so, when the daily report sheets were prepared, she would show a total which would not agree with the total amount actually received or the correct total of the items shown on the sheets, but only the amount that would go into the bank account. The cash that was not deposited in the bank would be taken by Nolan and put in his pocket. This cash would be taken out of the deposits after the cash drawer was balanced. The deposits for each day were thus short totaled. More money was collected than was put in the bank on those days. She was very reluctant to cooperate with Nolan in this manipulation. She knew it was not right and that it was not 'fool proof'. Nolan took the money and bought the watches. When the company moved to Silver Spring the same manipulation of the accounts was followed under Nolan's directions. She and Nolan had been going together since early in 1951. He told her he was separated form his wife but she would not give him a divorce. He took her to various restaurants around Washington. They went to the Silver Fox Restaurant an average of four times a week, where they had drinks and dinner. During the period from August, 1952, to October, 1952, he paid that restaurant various amounts, about $225 each payment. She did not take any of Federal's money. He would keep part of the money which he took from Federal's cash drawer, would give part to her and, if anything was left, it was kept in the top drawer of a desk in her apartment. She bought some clothes with her money. In October, 1952, she thought there was between $25,000 and $30,000 in that desk drawer. Part of this money was taken from Federal and the balance from a deal which Nolan had with a used car dealer, Metcalf, who was giving him a 'kick back' for loans made by Federal. Nolan later took the money from her desk drawer and told her he had buried it in the basement of his home. She purchased a 1951 Cadillac for herself in February, 1952, for about $3,000 with money Nolan gave her and which he took from Federal. She bought another Cadillac in September, 1952, in Philadelphia, in the presence of Nolan, for about $5,300 in cash, which Nolah paid for. The certificate of title was made out to her and later put in their joint names. In the summer of 1953 Nolan said he wanted the title transferred for the purpose of obtaining a loan. About that time he gave her $4,200 to deposit in her checking account because he said he had a joint account with his wife and she might check on it. $4,000 of this amount was later drawn out of the bank and $200 left to cover other expenses. She also purchased a mink coat in Washington for $5,500 plus tax. Part of this was paid for by turning in another mink coat. She paid the balance on it about the first of October, 1952, with money Nolan had given her. In July, 1953, she turned the coat over to him to sell in order to provide her with an attorney when she was arrested in Washington. He still has the coat in his possession. About November 1, 1952, Mr. Abrams discharged Mr. Lauer and said that she and Nolan would have to do the work, which the three of them had not been able to do. Nolan became angry and left. Shortly after she also left. Nolan was under the impression that their scheme would never be found out and that an auditor would not find the short additions. He later, however, changed his mind. He received a call to report to Federal to discuss certain discrepancies which the accountant had found. He did not want to go and an attorney in Washington advised him not to go. At that time Nolan told her she was as guilty as he because she had prepared the daily report sheets. He threatened her, if she ever testified against him. She was acquitted by a jury in Washington. She stopped going with him in May, 1955, when she was informed that he was living with his wife.

Mr. David M. Gruber testified that he was a certified public accountant and was employed by Federal on November 9, 1952, to do accounting and auditing work. The daily report sheets showed different totals on the two sides and from his analysis of those sheets there was a difference of $2,592.94 which did not go to Federal's credit. He talked to Nolan about the shortages once and he denied any knowledge of it. He spoke to Mrs. Biggs at the same...