People v. Jones

• Decision Date: 10 April 1990
• Docket Number: Docket No. 112404
• Citation: 453 N.W.2d 293,182 Mich.App. 668
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Patricia JONES, Defendant-Appellee. 182 Mich.App. 668, 453 N.W.2d 293
• Court: Court of Appeal of Michigan — District of US

Page 293

453 N.W.2d 293

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Patricia JONES, Defendant-Appellee.

Docket No. 112404.

182 Mich.App. 668, 453 N.W.2d 293

Court of Appeals of Michigan.

Submitted Jan. 17, 1990.

Decided March 19, 1990.

Released for Publication April 10, 1990.

[182 MICHAPP 669] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Harold F. Closz, III, Pros. Atty., and Victor A. Fitz, Asst. Pros. Atty., for the People.

Before SHEPHERD, P.J., and MAHER and SULLIVAN, JJ.

SULLIVAN, Judge.

The people appeal by leave granted from a circuit court opinion and order ruling that a demand and a failure, neglect or refusal to account for funds entrusted to a public official are essential elements of the offense of embezzlement by a public official, M.C.L. Sec. 750.175; M.S.A. Sec. 28.372. We reverse.

Defendant was an elected member of the Muskegon Heights City Council. On March 11, 1988, the city gave her a check for $689.50 to cover expenses for attending an upcoming conference. According to the evidence presented at the preliminary examination on June 13, 1988, defendant cashed the check, used the money to cover a medical emergency and did not attend the conference.

On June 1, 1988, the prosecutor charged defendant with embezzlement by a public official of more than $50 under M.C.L. Sec. 750.175; M.S.A. Sec. 28.372:

Any person holding any public office in this state, or the agent or servant of any such person, who knowingly and unlawfully appropriates to his own use, or to the use of any other person, the money or property received by him in his official capacity or employment, of the value of 50 dollars or upwards, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 10 years or by fine of not more than 5,000 dollars.

[182 MICHAPP 670] 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.

Five days after she was charged with embezzlement, defendant reimbursed the city for the expense money advanced to her.

We do not believe that the embezzlement statute at issue requires the prosecutor to prove, as elements of the offense, a demand and failure to pay on demand. Our Supreme Court has addressed this issue and ruled that a demand is not necessary under Sec. 175. People v. Hopper, 274 Mich. 418, 422, 264 N.W. 849 (1936). Such matters as refusal to pay at the time provided by contract or on demand, or demand or lack of demand are not, the Hopper Court noted, elements of the offense of embezzlement, but are merely circumstances bearing upon intent. Id., at pp. 422-423, 264 N.W. 849, quoting from American Life Ins. Co. v. United States Fidelity & Guaranty Co., 261 Mich. 221, 224-225, 246 N.W. 71 (1933). Nor do we believe that the prosecutor must prove as an element of the offense the public official's failure or refusal to pay over and deliver to his successor the money which should be in his hands as an official. The second paragraph of Sec. 175 merely creates a presumption of one fact from another which has already been established. People v. Rafalko, 26 Mich.App. 565, 570, 182 N.W.2d 732 (1970). In discussing the statute at issue, our Supreme Court has stated: "The intention of the statute was to prevent any public official from using money or property coming to him in his official capacity for any other purpose than the purpose for which it came to him. If he does knowingly use it, or [182 MICHAPP 671] permit others to do so, for other purposes than the one for which it was intrusted to him, then he comes within the provisions of the statute." People v. Warren, 122 Mich. 504, 521-522, 81 N.W. 360 (1899).

Moreover, in analyzing a provision in the statute governing embezzlement by an agent or servant, M.C.L. Sec. 750.174; M.S.A. Sec. 28.371, which is similar to the second paragraph in Sec. 175, for an equal protection violation the panel in Rafalko stated:

While such an argument is truly novel, a careful consideration of the presumption itself has been ignored. Underlying the entire thesis is the supposition that an alleged embezzler capable of returning the money may escape legal consequences for his crime. We do not so read the statute. The first section of the statute is complete in itself. The requirement of intent is provable in the same manner as any statute requiring intent. The facts of the case at hand reveal that no advantage is given the purported embezzler who is able to return the monies taken upon demand. The fact that these monies are returned does not allow an individual to escape prosecution and conviction, for he can be prosecuted under the first paragraph of the statute without the aid of the presumption. The second paragraph is not an exculpatory clause allowing escape from prosecution if restitution is made. [26 Mich.App. at 570, 182 N.W.2d 732. Emphasis added.]

See also People v. Matthews, 289 Mich. 440, 451; 286 N.W. 675 (1939), and People v. Butts, 128 Mich. 208, 214, 87 N.W. 224 (1901).

We believe that the Rafalko panel's interpretation of the statute governing embezzlement by an agent or servant is correct and can be extended to the statute at issue in this case. A defendant can be prosecuted under the first paragraph of the statute without the aid of the presumption in the [182 MICHAPP 672] second paragraph. The standard jury instruction also follows that interpretation. ¹

In ruling that a demand and...