People v. Barrett

• Decision Date: 18 January 1950
• Docket Number: No. 31267,31267
• Citation: 405 Ill. 188,90 N.E.2d 94
• Parties: PEOPLE v. BARRETT.
• Court: Illinois Supreme Court

Page 94

90 N.E.2d 94

405 Ill. 188

PEOPLE v. BARRETT.

No. 31267.

Supreme Court of Illinois.

Jan. 18, 1950.

Harry A. Biossat, of Chicago, for plaintiff in error.

Ivan A. Elliott, Attorney General, and John S. Boyle, State's Attorney, of Chicago (John T. Gallagher, Clement D. Cody, and Rudolph L. Janega, all of Chicago, of counsel), for the People.

THOMPSON, Chief Justice.

Lawrence A. Barrett, plaintiff in error, prosecutes this writ to review a judgment of conviction of embezzlement entered by the criminal court of Cook County after trial before that court without a jury. He was sentenced to the Illinois State Penitentiary for a term of not less than five nor more than eight years. The indictment returned against him consisted of two counts, the first of which charged that he feloniously and fraudulently, without having the consent of unpaid owners and holders of certain liquidating trust certificates, embezzled and fraudulently converted to his own use a sum of money amounting to $10,398.31, which was the money and property of Teresa Romanelli, in the amount of $120; Helen McGovern, in the amount of $107.18; Bennett W. Ellis, $49.21; Eleanor Cowdin, $20.69; John Bintz, $6.78, and 2500 other unpaid holders and owners of certain liquidating trust certificates whose names are unknown to the grand jurors. The second count charged larceny of the same property but will need no consideration in this opinion since the trial court made no finding with respect to it.

The charges against defendant arose from his participation as successor trustee in a plan for the reorganization of The Madison-Kedzie Trust and Savings Bank which had suspended banking operations on March 4, 1933. Briefly, under the plan a new bank was created, while the assets of the old bank were to be liquidated and paid to the persons entitled to receive payment. One William L. O'Connell was named as liquidating trustee and, shortly after December 21, 1934, entered into a liquidating trust indenture with the bank, by which the assets to be liquidated were delivered to him. O'Connell died July 24 1936, and, under the terms of the trust agreement, defendant succeeded him as liquidating trustee.

The trust agreement provided that the trustee be vested with equitable title to certain assets of the bank enumerated in the indenture for the purpose of liquidating, compromising, exchanging and settling them, and ultimately reducing the same to cash, at times and in manners solely within the absolute and uncontrolled discretion of the trustee. It was provided that all cash sums realized by the trustee should be distributed in the following order of priority: (1) To the payment of costs and expenses of the liquidating trustee; (2) Pro rata to the holders of Class A Liquidating Trust Certificates authorized under the provisions of the trust agreement; (3) Pro rata to holders of class B certificates; and (4) Pro rata to holders of class C certificates. The latter two classes of certificate holders were to receive nothing until class A holders had been paid in full. The total face value of outstanding class A certificates was $826,613. It was agreed that the trust certificates were not to constitute an indebtedness of the bank or of the liquidating trustee, but only evidence of the right of the certificate holders to receive payments from the trustee when and if payments were made by him. The trustee was to keep a record of certificates issued, dates, names and addresses of persons to whom issued, the amounts, and records of transfers, cancellations and payments.

Plaintiff in error set about to liquidate the assets he had received as successor trustee, and as he did so placed the money realized in what was known as the trustee's general account in the Merchants National Bank of Chicago. On December 26, 1942, he withdrew $82,658.03 from his general account and with it opened what was called the trustee's dividend account in the same bank. He then declared a 10 per cent dividend for class A certificate holders, sending them notice of the same. June 5, 1944, a second 10 per cent dividend was declared and notice given; however, defendant deposited only $70,000 in the dividend account. A dividend of 15 per cent was declared on January 15, 1946, but only $60,000 was deposited in the dividend account. The three dividends were not put into separate accounts or segregated in any manner but all went into the one dividend account at the Merchants National Bank. The total cash requirement for the three dividends declared aggregated $289,291.44, yet up to and including March 6, 1946, defendant's deposits were only $212,644.96 or $76,646.48 short of the amount required. On March 6, 1946, the dividend account became depleted when an overdraft of $48.63 occurred. On this date there was still a sum of $10,398.31 of the first dividend yet unpaid to 2786 class A certificate holders, including those named in the indictment. It is this sum which defendant is accused of embezzling.

Subsequent to March 8, 1946, and concluding September 29, 1946, the defendant transferred a total of $16,250 from his general account to the dividend account by eleven separate transfer items, some of which were to meet overdrafts; $4600 was deposited from an unexplained source; and $227.74 was transferred by bank authorities after closing out the account because of an overdraft under date of September 30, 1946. The dividend account on that date was short $51,439.74 of the amount necessary to completely pay out the three dividends declared. On January 3, 1947, a receiver of the assets, property and effects of the liquidating trust was appointed by the circuit court of Cook County. At that time there remained only $4.75 in defendant's general account.

The notice of the first 10 per cent dividend which was sent to each of the class A certificate holders was substantially as follows: 'A ten per cent (10%) liquidating dividend has been declared on the outstanding Class 'A' Liquidating Trust Certificates as of December 28th, 1942. Kindly bring your certificate (which is required for endorsement of payment). Call at office No. 2,' etc. The checks made up for the first dividend were blue and white in color and had printed on the margin 'Liquidating Dividend No. 1, ten per cent Class A liquidation trust certificate.' The checks for the second and third dividends were different colors.

The indictment, which was returned April 21, 1948, charged that plaintiff in error feloniously and fraudulently, without having the consent of the unpaid class A certificate owners, embezzled and fraudulently converted to his own use the sum of $10,398.31 belonging to Teresa Rommelli, Helen McGovern, Bennett W. Ellis, Eleanor Cowdin, John Bintz and 2500 other unpaid holders and owners of class A liquidating certificates. Briefly, the theory of the prosecution is that plaintiff in error wilfully converted the sum to his own use by using it to discharge his obligations to the second and third dividend holders. Plaintiff in error pleaded not guilty, following which a hearing was held before the court. At the conclusion of the evidence defendant presented a written motion for a judgment of not guilty because of alleged duplicity of counts 1 and 2 of the indictment and because of the intervention of the three-year Statute of Limitations. Ill.Rev.Stat.1949, c. 38, § 630. This motion, along with those in arrest of judgment and for a new trial, were overruled by the trial court, which thereupon found him guilty of embezzlement as to count 1, made no finding with respect to count 2, the larceny count, and sentenced him to the penitentiary.

In the errors assigned in this court plaintiff in error reiterates his contentions that count 1 is duplicitous and that the indictment was barred by the three-year Statute of Limitations. In addition he urges that the evidence fails to prove the crime of embezzlement, stating that the evidence does not show a criminal intent, or a conversion to his own use. Finally, it is contended that there was a variance between the allegations of the indictment and the proofs as to ownership of the several beneficiaries of the trust.

With respect to the assertion that count 1 is duplicitous, defendant argues that where one is charged with a number of embezzlements from separate individuals, in separate amounts, such charges cannot be joined in one count of an indictment. Although it is the general rule that it is improper to lay the ownership of property involved in an offense in several different persons in a single count of an indictment, an indictment charging in one count an offense involving the property of several different owners is not rendered duplicitous by reason of the allegation of plurality of owners where it charges the commission of one offense committed at one time and place, constituting one transaction. 27 Am.Jur. p. 685. Duplicity in an indictment arises from charging more than one offense, not from charging a single offense committed in more than one way, or pleading different acts contributing to the ultimate charged offense. United States v. Goedde & Co., D.C., 40 F.Supp. 523. Where two offenses arise out of a single transaction, a single indictment may contain counts as to each offense, or the offenses may be joined in the same count. People v. Arnold, 396 Ill. 440, 72 N.E.2d 188. From the foregoing it may be seen that whether the allegations of the indictment here charge separate embezzlements, or merely a pleading of separate acts which ultimately constitute a charge of one offense, they were properly joined in one count since they arose from one transaction, in the same manner, time and place. As pointed out in People v. Schnepp, 362 Ill. 495, 200 N.E. 338, embezzlement may, and often does, consist of many acts done in a series of months or even years. The charge of duplicity is not well founded.

Defendant's next allegation of error is that the proofs show that the...