People v. Hopper

• Decision Date: 31 January 1936
• Docket Number: No. 128.,128.
• Citation: 264 N.W. 849,274 Mich. 418
• Parties: PEOPLE v. HOPPER.
• Court: Michigan Supreme Court

274 Mich. 418

264 N.W. 849

PEOPLE

v.HOPPER.

No. 128.

Supreme Court of Michigan.

Jan. 31, 1936.

Merle Hopper was convicted of embezzlement, and he appeals.

Affirmed.

Appeal from Circuit Court, Ingham County; Charles B. Collingwood, judge.

Argued before the Entire Bench except NELSON SHARPE, J.

Seymour H. Person and Barnard Pierce, both of Lansing, for appellant.

Harry S. Toy, Atty. Gen., and Dan D. MCCullough, Pros. Atty., and Benjamin F. Watson, Asst. Pros. Atty., both of Lansing, for the People.

BUSHNELL, Justice.

The material part of the information upon which respondent was convicted of embezzlement reads: ‘That, heretofore, on to-wit: the first day of April, A. D. 1934, at the City of Lansing and in the County of Ingham aforesaid, one Merle Hopper late of the City of Lansing and County of Ingham aforesaid, being then and there an agent of the Ingham County Soldiers and Sailors Relief, and not being then and there an apprentice or other person under the age of sixteen years, did then and there receive and take into his possession by virtue of said agency, the sum of $74.10, the property of the said Ingham County Soldiers and Sailors Relief, did then and there embezzle and fraudulently convert to his use, with intent to cheat and defraud the said Ingham County Soldiers and Sailors Relief; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the People of the State of Michigan.’

Appellant's assignment of error and statement of questions involved are discussed in the briefs under the following headings:

(1) The court should have directed a verdict of not guilty and discharged the respondent because of the repeal of the statute under which the information was drawn; because of a fatal variance between the information and the proofs; because there was no proof of the corpus delicti and no proof of an embezzlement or a conversion.

(2) The court erred in permitting testimony to be introduced in reference to the so-called Cahill check and other claimed ‘intent transactions.’

(3) Errors in the charge of the court.

It is not necessary that an information indicate the particular section or even the statute upon which the case rests. People v. Murn, 220 Mich. 555, 190 N.W. 666. The information filed September 10, 1934, charges appellant with a violation of the law on April 1, 1934. Its language is applicable to both sections 174 and 175 of the Michigan Penal Code, Act No. 328, Public Acts 1931 (Mason's 1935 Supplement of Comp.Laws of 1929, §§ 17115–174, 17115–175); hence it was not drawn under a repealed statute.

Defendant, who was chairman of the soldiers' and sailors' relief commission, argues that he cannot be charged as an agent. We discussed a similar argument in People v. Belz, 257 Mich. 302, 241 N.W. 219. The money, in question, was under the control of the commission of which respondent was a member, but in handling of funds he acted as its agent, performing the same duties that might have been rendered by any other employee or agent; he was paid a salary for such services, and was subject to the direction of the commission.

To argue that the conviction cannot be sustained because the commission is not specifically named in the statute is to say that no one could be guilty of embezzlement of its funds under any circumstances.

‘This was certainly never the intention of the legislature in passing the statute creating the crime.’ People v. Converse, 74 Mich. 478, 42 N.W. 70, 71,16 Am.St.Rep. 648.

Appellant misconstrues the ‘demand’ language of section 175 of the Code. It states: ‘In any prosecution under this section the failure, neglect or refusal of any public officer to pay over and deliver to his successor all moneys and property which should be in his hands as such officer, shall be prima facie evidence of an offense against the provisions of this section.’

The people concede no demand was made and we believe none was necessary.

‘The mere failure to pay over moneys belonging to another, without a felonious intent, is not embezzlement. People v. Hurst, 62 Mich. 276, 28 N.W. 838;Fleener v. State, 58 Ark. 98, 23 S.W. 1. Such matters as concealment or its absence, refusal to pay at the time provided by contract or on demand, or demand or lack of demand, pointed out in some cases as indicating commission of crime or constituting a defense, are not to be taken as declared essentials of the offense or defense but merely as circumstances bearing upon the intent. Hanna v. Minnesota Life Ins. Co., 241 Mo. 383, 145 S.W. 412.’ American Life Ins. Co. v. United States Fid. & G. Co., 261 Mich. 221, 246 N.W. 71, 73.

The people state in their brief that the prosecution was under the general section, 174, and appellant says the prosecution, if any, should have been under the public officer section, 175, Michigan Penal Code. Under the latter section, proof is required that the accused knowingly and unlawfully appropriated to his own use, etc., while under the former it is necessary to show fraudulent intent. We quote a portion of the court's charge to the jury: ‘The sole question for you to determine is this, Did Merle Hopper feloniously and with intent to steal appropriate the money to his own use? If from the evidence and beyond a reasonable doubt you find he did feloniously appropriate this money to his own use, he is guilty as charged. If you cannot so find, he is not guilty. In determining this question, you will be governed only by the evidence that has come to you from this witness...