People v. Goldman
| Decision Date | 08 October 1925 |
| Docket Number | No. 16434.,16434. |
| Citation | 318 Ill. 77,148 N.E. 873 |
| Parties | PEOPLE v. GOLDMAN. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Criminal Court, Cook County; Hosea W. Wells, Judge.
Thompson, Heard, and De Young, JJ., dissenting.
Lloyd D. Heth, of Chicago, for plaintiff in error.
Edward J. Brundage and Oscar E. Carlstrom, Attys. Gen., Robert E. Crowe, State's Atty., of Chicago, Albert D. Rodenberg, Edward C. Fitch and Virgil L. Blanding, all of Springfield (Edward E. Wilson, Clarence E. Nelson, and Henry T. Chace, Jr., all of Chicago, of counsel), for the People.
At the July term, 1923, of the criminal court of Cook county the grand jury returned an indictment against plaintiff in error, Jacob Goldman, charging him in three counts with larceny as bailee, embezzlement, and larceny. A motion to quash the indictment was overruled. At the conclusion of the evidence the state's attorney nollied the third count, and asked for a conviction under the first count for the wrongful conversion of a $50 Victory bond. At the conclusion of the trial the jury returned a verdict finding plaintiff in error guilty as charged, and fixing the value of the property converted at $550. Motions for a new trial and in arrest of judgment were overruled, and plaintiff in error was sentenced to the penitentiary.
This prosecution arises out of the conduct of plaintiff in error (hereafter called defendant) as receiver of the estate of a partnership, Kirby, Cullen, Auer & Honecker, in a proceeding in the circuit court of Cook county to wind up its business. Defendant was appointed receiver of this estate September 23, 1920, and continued in that capacity until he was removed, May 14, 1923. At the time of his removal he was acting as receiver in 298 cases pending in the courts of Cook county. Between the time of his appointment and that of his removal several orders were entered directing him to collect the assets of the estate, to pay certain claims against the estate, and distribute the balance among the four persons constituting the partnership. The proof in the record shows Goldman received and receipted for property of the partnership, two $500 Hamilton Club bonds, ten $100 Victory bonds, one $500 note, one share Refrigerator Car Equipment Company stock, two plate glass insurance policies, and one lease to room 1304, Standard Trust Building.
The first count of the indictment charged defendant with larceny as bailee of $9,521 in money, one $500 bond, and one $50 bond, the property of the partnership named. The second count described the same property, and alleged defendant was appointed receiver of Kirby, Cullen, Auer & Honecker, copartners, and came into possession of assets of the partnership; that he was legally required by the court to account for said funds and property, and pay and turn them over to the Chicago Title & Trust Company, his successor as receiver, but refused to do so, whereby he committed larceny.
[1] The first contention of defendant which we will notice is that a receiver is not subject to indictment under section 81 1/2 of the Criminal Code (Smith-Hurd Rev. St. c. 38, § 216). That section is as follows:
‘Whoever, being the administrator of the estate of a decedent, or the executor of a last will, or guardian of any minor, conservator of any idiot, distracted person, drunkard, spendthrift or insane person or trustee or other person acting in any fiduciary capacity, without good cause, fails or refuses, when legally required by the proper person or authority, to account for or pay over to such person or persons as may be lawfully entitled to receive the same, any money, choses in action, or other property which may have come into his hands, by virtue of his office, duty or trust, shall be deemed guilty of larceny.’
It will be seen the statute specifically enumerates as liable to indictment and punishment for larceny any administrator, executor, guardian, conservator, trustee, ‘or other personacting in any fiduciary capacity.’ A receiver is not specifically mentioned, and it is argued a receiver is not a trustee and does not act in a fiduciary capacity, and the statute should not be construed to embrace that office. Counsel on both sides say there is very little direct authority to be found on the question. In addition to the general principle that a receiver is an officer of the court, that property in his possession is in custodia legis, that he stands indifferent between the parties having claims against the funds, but his duty is to preserve the property and disburse it upon orders of the court, counsel for defendant relies on a decision of the Supreme Court of Kansas in State v. Hubbard, 58 Kan. 797, 51 P. 290,39 L. R. A. 860. We do not consider that case decided the question here raised. The court construed a statute making persons occupying certain positons liable for embezzlement and larceny. The statute mentioned trustees and agents, but not receivers. A receiver was indicted and convicted, and the conviction was sought to be sustained on the ground that he came under the designation of ‘agent.’ The court held a receiver was not an agent, and reversed the judgment of conviction. It is apparent some meaning must be given ‘or other person acting in any fiduciary capacity,’ in section 81 1/2.
Counsel for the state argue that a guardian or conservator has no title to the property, but possession only by virtue of his appointment by the court, and a receiver is of the same character of fiduciary, and under the rule of ejusdem generis is embraced in the statute. In Caminetti v. United States, 242 U. S. 470, 37 S. Ct. 192, 61 L. Ed. 442, L. R. A. 1917F, 502, Ann. Cas. 1917B, 1168, the defendant was indicted and convicted under a statute which forbade transporting a female from one state to another for the purpose of prostitution or debauching or for any other immoral purpose. It was contended on behalf of the defendant that the statute was intended only to apply to commercialized vice, and that, as what defendant did was free from any element of commercialism, his act was not within the statute, no matter how immoral it may have been. The court held, in effect, that construction would nullify a part of the statute; that it might be more culpable and baser in morals to transport a woman to another state for prostitution for pecuniary gain, but the transportation for the purpose of enjoying sexual relations is an immoral purpose, and the statute covered such acts.
The enactment of section 81 1/2 was intended to apply to officers or persons intrusted with the management of the preservation of the property of others. We think of no reason why a receiver should be exempt from its provisions. He is appointed by the court to preserve and account for the property the same as a guardian or conservator. The Legislature intended the statute should apply to others than those specifically designated. It is true that a body might have mentioned receivers if it was intended the act should apply to them, but the fact that it did not is not conclusive the act was not intended to embrace receivers. Having mentioned similarpositions as subject to the act which are generally regarded as fiduciary capacities, the statute, without further enumeration, was made to apply to other persons acting in a fiduciary capacity. Perhaps a receiver is, strictly speaking, not a fiduciary nor a trustee, but it is not uncommon to refer to a receiver as quasi trustee or a fiduciary. King v. Goodwin, 130 Ill. 102, 22 N. E. 533,17 Am. St. Rep. 277; 23 R. C. L. § 2, p. 8; Ardmore Nat. Bank v. Briggs Co., 20 Okl. 427, 94 P. 533,23 L. R. A. 1074, 129 Am. St. Rep. 747,16 Ann. Cas. 133; 4 Pomeroy's Eq. Jur. § 1336, p. 2663. Paraphrasing the language of the Supreme Court of the United States in the Caminetti Case, supra, the added words, ‘or other person acting in any fiduciary capacity,’ show beyond question the Legislature had in view the protection of society against other persons than those specifically enumerated. As receivers are, in the main, of the same general character as those mentioned, under the rule of ejusdem generis the act was intended to and does apply to them.
[2] Both counts describe the same property. The only difference is the first count charges larceny as bailee, and the second charges larceny by embezzlement. The jury returned a general verdict of guilty in manner and form as charged in the indictment. The same transaction is charged in both counts. If the evidence supported either, it was not error to render judgment and sentence on the verdict. Duffin v. People, 107 Ill. 113, 47 Am. Rep. 431;Langford v. People, 134 Ill. 444, 25 N. E. 1009;Love v. People, 160 Ill. 501, 43 N. E. 710,32 L. R. A. 139.
Arthur J. Belfry testified as a witness for the state. He is a public accountant, and was employed by a surety company to audit the accounts of defendant as receiver. He made an abstract from the original books. He got the files at the Chicago Title & Trust Company. He examined check books, stubs, canceled checks, books, and court files. He began the work in May, 1923, and completed it in January, 1924. The witness audited the accounts of defendant in all the 298 estates of which he was receiver. He found defendant was accountable to all the estates in an aggregate of $205,000. Defendant had on hand approximately $40,000. He found the defendant was accountable to the Kirby-Cullen estate for $4,441.56. Some of the files and papers he found at the Chicago Title & Trust Company and examined them there. He secured the records impounded by Judge Scanlan and examined them, and from all books, papers, and files examined he made an abstract showing the amount the defendant was accountable for to each estate. In some instances he found canceled checks which had not been entered in the...
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