Peddersen v. State
Decision Date | 25 October 1960 |
Docket Number | No. 18,18 |
Citation | 164 A.2d 539,223 Md. 329 |
Parties | Carl M. PEDDERSEN v. STATE of Maryland. |
Court | Maryland Court of Appeals |
Robert C. Heeney, Rockville, for appellant.
James H. Norris, Jr., Sp. Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., and Leonard T. Kardy, State's Atty., for Montgomery County, Rockville, on the brief), for appellee.
Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
This is an appeal by Carl M. Peddersen (the defendant) from the judgment and sentence imposed by the court upon his conviction by a jury of embezzlement.
The defendant was the manager of the farm in Montgomery County owned by Ringgold Hart. One of the duties of his employment was to sell livestock whenever directed to do so by the owner. The manager had authority to choose to whom and at what price to sell, and to receive the proceeds of sale for his employer.
After preliminary negotiations with a commission merchant in Pennsylvania, and, pursuant to general instructions by the owner to sell, the defendant on September 11, 1956, accompanied 60 head of cattle, hauled by the buyer to Lancaster, where they were sold for $11,979.19. When the defendant was asked by the commission merchant to whom the check should be made, he replied, after some hesitation, that it should be made payable to himself. This was done, and the defendant returned to his home on the farm, called the owner and informed him of the sale. The owner instructed the defendant to mail the check to his office in Washington, D. C., but the defendant never complied with the instructions.
The next day (September 12) the defendant returned to Lancaster, presented the check to the drawee bank, obtained in exchange two treasurer's checks payable to the defendant for the sum of $5,390.63 each, and $1,197.93 in cash, and again returned to his home with the cash and treasurer's checks in his possession.
A day later (September 13) the defendant went to a bank in Frederick, cashed both of the treasurer's checks and came back to Montgomery County. On the following day (September 14) he revisited Frederick and purchased from the same bank five $1,000 United States Savings Bonds made out in the name of the defendant. Upon returning home that evening, he learned that he and his wife were about to become involved in a custody suit over one of her children by a former husband. During the same evening he took his wife and children to an airport where they boarded a plane for the West Coast. The day after their departure (September 15) the defendant drove his automobile to Frederick, parked it in a lot, and also flew west.
The defendant was indicted by the Grand Jury of Montgomery County in November of 1956 for embezzlement, larceny after trust and grand larceny, but was not apprehended until 1959 when he voluntarily gave himself up to the F.B.I. at New Orleans. He waived extradition to Pennsylvania, where for reasons not clear in the record, he again waived extradition to Maryland. When he was released on bail in July of 1959 he returned to his new home in Mississippi.
The case was set for trial on December 14, 1959, but a continuance was granted because of the defendant's illness. Although he was informed that he must return to Maryland before Christmas of 1959, he failed to return until January 5, 1960, which was the date set for trial. His motion for a further continuance was denied.
The defendant made no effect to raise the question of venue by a motion before trial as he might have done under Maryland Rule 725 b. Instead he chose to attack the jurisdiction of the trial court in the fundamental sense by motions for directed verdicts and by objections to the court's instructions to the jury on the ground that the crime was committed in Pennsylvania. The verdicts of the jury were guilty of embezzlement under the first count and not guilty under the other two counts.
On appeal the defendant assigns three reasons why he believes the judgment should be reversed: (i) that the crime of embezzlement was not committed in Montgomery County; (ii) that there was error in the instructions to the jury; and (iii) that the refusal to grant a continuance was an abuse of discretion.
(i) and (ii).
Since the first and second contentions of the defendant are interrelated we shall consider them together. The first contention (raised by motions for directed verdicts at the close of the State's evidence and again at the close of all the evidence) is that the evidence was insufficient in law to sustain a conviction of the defendant of embezzlement in Montgomery County. The second contention (raised by an objection to the instructions) is that it was error to instruct the jury that the proper venue for the trial of the crime of embezzlement is the place where the intent to embezzle was formed.
In support of the proposition that the evidence was insufficient to support a conviction, the defendant relies on Bowen v. State, 1955, 206 Md. 368, 111 A.2d 844. There, the defendant (the president of a title company), who was indicted in Montgomery County for embezzlement and larceny after trust, received the money (in the form of checks) in Bethesda, but deposited the checks in the bank account of the company in the District of Columbia, where the checks were paid, and where the money was withdrawn and appropriated by the defendant. In reversing a conviction for larceny after trust and embezzlement, this Court held, citing Worthington v. State, 1882, 58 Md. 403, 1 among other cases and authorities, that no act of conversion or appropriation had taken place in Montgomery County, and therefore the court of that county had no jurisdiction.
In the Bowen case, supra, neither the fraudulent intent, nor the act of appropriation occurred in Maryland . Here (in Peddersen), there is evidence from which an inference could be drawn that both of these elements occurred in this State. In the first place, the mere receiving of the check in Pennsylvania on September 11 was not clearly shown to be a conversion. Indeed, the contrary was shown by the fact that the defendant returned to Montgomery County that same day and informed his employer of the sale. Furthermore, the defendant himself testified that he had no fraudulent intent at that time, and since the check for the cattle could have been endorsed and made payable to his employer as he was instructed to do, the mere receipt and retention of the check was not an unequivocal act of appropriation. Nor is the fact that the defendant returned to Pennsylvania the next day to cash the check conclusive; he could still have endorsed the two treasurer's checks and, along with the cash, obeyed his employer's instructions to send the funds to him in Washington. Again, the testimony was to the effect that he did not decide to appropriate the money until after he had been to Frederick (on two consecutive days) and had cashed the treasurer's checks and purchased the savings bonds. In view of the testimony on the part of the defendant, the jury may well have believed that the fraudulent intent was not finally formed until the evening of September 14 upon the return of the defendant to Montgomery County from Frederick.
We think it is a fair inference, from all the facts and circumstances, that the fraudulent intent was actually formed over a period of four days--from September 11 to the evening of September 14--and that such intent did not finally culminate until the latter date when the defendant, after consultation with his wife and in order to avoid the possible consequences of the impending contest for custody of the child, decided to flee the State and carry the cash and bonds with him. Since it appears that the threat of the imminent custody suit was the stimulus that ultimately solidified the fraudulent intent, it is possible that the flight of the defendant with his family was the first clearly unequivocal act of appropriation. But be that as it may, the defendant's judicial confession that he had actually formed the fraudulent intent at a time when he had possession of the appropriated property was sufficient evidence to convict him of embezzlement in Montgomery County.
The basic objection to the instructions was based only on that part of the charge which informed the jury that it must find that fraudulent intent was formed in Montgomery County in order to convict the defendant of embezzlement.
To support his claim of error, the defendant cited a statement from 2 Wharton, Criminal Law (12th ed.), § 1309, which read: In support of this statement the author cited Larkin v. People, 1871, 61 Barb., N.Y., 226. 2 That case neither helps the defendant nor deals with the problem in this case since the ultimate holding was that, under the New York statutes concerning embezzlement, there had been no crime at all. Moreover, § 1309 is apparently inconsistent with an earlier section; compare the same text, at § 1289, where it was said: 'The defendant may be tried in any county where any part of the embezzlement was committed, or where, upon being called upon to account, he disowned having received the money.'
Other law writers have recognized that where intent plus possession is shown, this will be sufficient reason for a court to assume jurisdiction of the offense. See, for example, Clark and Marshall, Crimes (6th ed.), § 3.02
See also 3 Underhill,...
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