People v. Cobb

• Decision Date: 18 February 1931
• Docket Number: No. 20370.,20370.
• Parties: PEOPLE v. COBB et al.
• Court: Illinois Supreme Court

343 Ill. 78

174 N.E. 885

PEOPLE

v.COBB et al.

No. 20370.

Supreme Court of Illinois.

Feb. 18, 1931.

Error to Circuit Court, Franklin County; C. H. Miller, Judge.

Delbert B. Cobb and another were convicted of larceny by embezzlement, and they bring error.

Affirmed.Walter W. Williams, Thurlow G. Lewis, and Carter H. Harrison, all of Benton, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., Marion M. Hart, State's Atty., of Benton, Merrill F. Wehmhoff, of Springfield, and Robert E. Hickman, of Benton (Moses Pulverman, of Benton, of counsel), for the People.

ORR, J.

The plaintiffs in error, Delbert B. Cobb and Ed P. Loden (herein called defendants), were found guilty of larceny by embezzlement by a jury in the circuit court of Franklin county at its February term, 1930. The case is here on a writ of error.

Lon Fox, Delbert B. Cobb, and Ed. P. Loden during 1927 were, respectively, the resident officers, to wit, president, vice president, and secretary-treasurer of subdistrict No. 9, district No. 12, of the United Mine Workers of America, an unincorporated fraternal beneficiary organization existing for the benefit of coal miners belonging to the association. Subdistrict No. 9 embraced all of the local unions in Franklin county. In 1927 a strike, coupled with a prior slackness of employment at the mines, created some distress among the member miners of the local unions in the subdistrict. At the biennial convention in May, 1927, presided over by Fox, the plight of the miners was discussed and cognizance taken of the fact that many of the families of the miners were suffering from want of food. The subdistrict then had in excess of $50,000 of inactive funds on time deposits in various banks, which funds had not been set apart for any particular purpose. A proposition to use $50,000 of this money in purchasing groceries at wholesale by the resident officers was referred to a standing committeefor solution and report to the convention. The committee reported as follows: ‘Having been instructed by this delegation to bring before you some idea regarding the distribution of the sub-district funds, your committee believes that the resident sub-district officers be empowered to the sum of fifty thousand dollars ($50,000) to purchase groceries wholesale, and that same to be distributed to all the local unions in this sub-district per capita, and that all local unions elect sufficient men to handle this situation.’ This report was adopted unaniously by the convention. Thereupon Loden, as secretary-treasurer, on June 7, 1927, concentrated $50,000 of the time deposits in one bank, the Union State Bank of West Frankfort, opening a checking account in the name of ‘Lon Fox, D. B. Cobb and Ed P. Loden, Sec.-Treas.’ Bernard Hampton, a local merchant of West Frankfort, was at this time president of that bank and was requested by the three officers to recommend some place to buy the groceries wholesale. Hampton named a brokerage firm at Springfield and brought about a meeting between one Kellner, a member of the firm, and the three officers. After negotiations, groceries were purchased through Kellner, to be paid for upon delivery at West Frankfort and other points in Franklin county. Kellner agreed to send a representative to receive payment at West Frankfort and to make a distribution of the groceries at the expense of the subdistrict, as ordered by the three officers. Upon completion of arrangements, Cobb and Loden, by check, on June 7, 1927, transferred $2,500 of the $50,000 in the Union State Bank to the account of the brokerage firm, which had also opened an account in the same bank. All of the $50,000 was checked out to the account of the brokerage firm before June 14, 1927, by six checks, No. 1 being signed by D. B. Cobb, as vice president, and E. P. Loden, as secretary-treasurer; No. 2 being signed by Lon Fox, as president, D. B. Cobb, as vice president, and E. P. Loden, as secretary-treasurer;and Nos. 3, 4, 5, and 6 all being signed by E. P. Loden, as secretary-treasurer. These six checks aggregated $49,999.93 and were indorsed for the brokerage firm by C. J. Buhrer, its representative at West Frankfort. On June 14, 1927, Hampton called at the subdistrict offices and gave to Loden a deposit slip of the Union State Bank for $3,500 deposited to the account of Loden. He also left with Loden deposit slips showing deposits of $3,500, each, to the accounts of Cobb and Fox, for delivery to them. Loden testified that Hampton told him at the time that this was a division of his commission on the grocery deal with Fox, Cobb, and Loden, and that he (Hampton) got $3,000 as his share. The three men accepted these deposits and spent the money for their own personal use.

Kellner and Buhrer both testified that the amount of groceries actually purchased for the subdistrict amounted to about $35,000. Buhrer said that at the request of the two defendants and Fox he furnished them with false invoices, which, including the expense of distribution, used up all of the $50,000 with the exception of seven cents; that upon the presentation of a false invoice to the three officers a check would be issued to the brokerage firm for the amount of the invoice. Buhrer would then take the check to the bank, deposit it in the brokerage firm account, and pay off the draft which always accompanied a shipment of groceries. It was understood that such checks would each be in excess of the amount required to take up the respective sight drafts. After paying each draft Buhrer paid over the excess cash to Hampton, as he was directed to do by Fox, Cobb., and Loden. The total amount of excess cash thus paid over to Hampton, according to Buhrer, was $15,000 or $16,000, all of which was paid to Hampton in currency. Hampton testified that Fox, Cobb, and Loden told him to receive any money that Buhrer paid him, and that at different times Buhrer would pay money to him in the form of currency, the total amount of which he said was only $10,500; that when the payments reached that sum he took the money from his safe and on June 13, 1927, deposited it in the Union State Bank, $3,500 each to Loden, Fox, and Cobb. He denied ever saying that he had received $3,000 from Buhrer for his own benefit. Over two years later Cobb and Loden requested and secured an interview in Terre Haute, Ind., with John L. Lewis, president of the United Mine Workers of America. At this interview on September 15, 1929, both Loden and Cobb admitted receiving $3,500 as before stated, and said that Hampton told Loden he had received $3,000, and that the entire $50,000 appropriation for groceries was spent, of which about $34,000 was spent for groceries and about $16,000 was used for the payment of commissions, including the amounts received by them. At their trial the two defendants did not deny making these admissions, but did deny that they schemed or confederated with Buhrer, Hampton, or others, or among themselves and with Fox, to divert any of the $50,000 from its intended purpose or to take and appropriate any part thereof for their own personal use. However, the jury found the defendants guilty as charged, and the trial court denied their motions for new trial and in arrest of judgment and sentenced them to the Southern Illinois Penitentiary.

The defendants make numerous assignments of error, but only those assignments that are argued in their brief will be considered, since assignments of error not argued in briefs filed in this court are deemed to have been waived. International Harvester Co. v. Industrial Board, 282 Ill. 489, 118 N. E. 711;People v. Brown, 325 Ill. 307, 156 N. E. 369.

The only assignments of error preserved for review are: (1) That the statute under which the indictment is drawn is unconstitutional and void because it is in conflict with section 22 of article 4 of the state Constitution; (2) that the trial court erred in amending the record at a term subsequent to that at which the indictment was found in order to show that an indictment had been returned by the grand jury in open court; (3) that the court improperly refused a change of venue from the county on the ground of the prejudice of the inhabitants; (4) that the allegation in the indictment that the defendants had the custody of certain funds as officers of subdistrict No. 9 was not sustained by the proof.

Considering these assignments of error in the order stated, we find that the defendants were indicted under that section of the Criminal Code which makes it an offense for any person who is a member and officer of any fraternal beneficiary society, corporation, or association, or subordinate lodge thereof, to embezzle or fraudulently convert to his own use, or take and secrete with intent so to do, any funds or property of such beneficiary society, corporation, association, or subordinate lodge thereof which have come to his possession or are under his care by virtue of such office, without first obtaining the consent of the beneficiary society corporation, association, or subordinate lodge thereof, as the case may be. Cahill's Rev. St. 1929, c. 38, par. 196 (Smith-Hurd Rev. St. 1929, c. 38, § 218). The defendants argue that this statute made it a crime for an officer of a fraternal beneficiary society to misappropriate funds that came into his possession as such officer, the Legislature taking away the former defense that, being a beneficial owner of a portion of such fund, the officer could not be prosecuted for embezzlement. The defendantsurge that by singling out the officers and leaving all other members immune the Legislature has made an arbitrary distinction. They further claim that the distinction made is all the more arbitrary because the responsibility as fixed by the statute fastens only to such officer in whose hands the funds repose,...