People v. Rafalko

• Decision Date: 29 September 1970
• Docket Number: Docket No. 7090,No. 1,1
• Citation: People v. Rafalko, 182 N.W.2d 732, 26 Mich.App. 565 (Mich. App. 1970)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John RAFALKO, Defendant-Appellant
• Court: Court of Appeal of Michigan

Page 732

182 N.W.2d 732

26 Mich.App. 565

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.John RAFALKO, Defendant-Appellant.

Docket No. 7090.

Court of Appeals of Michigan, Division No. 1.

Sept. 29, 1970.

Released for Publication Jan. 21, 1971.

Lawrence R. Greene, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., William L. Cahalan, Pros.Atty., Dominick R. Carnovale, Chief, Appellate Div., Robert A. Reuther, Asst. Pros.Atty., for plaintiff-appellee.

Before FITZGERALD, P.J., and GILLIS and O'HARA^*, JJ.

FITZGERALD, Presiding Judge.

John Rafalko, defendant in the present case, was tried without a jury for embezzlement of money of the value of more than $100 contrary to M.C.L.A. § 750.174(Stat.Ann.1962 Rev. § 28.371).Defendant was convicted and sentenced to two years probation and restitution of $219.Defendant appeals from the judgment and sentence of the trial court.

The facts which led to the arrest and conviction of John Rafalko are as follows:

Prior to September 1968, defendant was employed as a bartender by Walter Rodgers the owner of an establishment known as Walter's Bar which is located at 10027Joseph Campau in the City of Hamtramck.On September 24, 1968, while working at the bar, defendant did take and use certain money belonging to Mr. Rodgers.On the following morning, Mr. Rodgers located Rafalko and asked him what he had done with the money.Rafalko admitted taking the money and also losing it at the race track the previous evening.It appears that defendant promised to make restitution later that evening.Several hours later, Rodgers came to the bar and demanded that Rafalko return the money which he had taken.Defendant stated that he did not have the money, whereupon Rodgers discharged him and indicated that he did not wish to see him around the bar anymore.Approximately one week later, defendant was arrested.

Three questions are raised on this appeal, all of which concern M.C.L.A. § 750.174(Stat.Ann.1962 Rev. § 28.371), which states:

'Any person who as the agent, servant or employee of another, or as the trustee, bailee or custodian of the property of another, or of any partnership, voluntary association, public or private corporation, or of this state, or of any county, city, village, township or school district within this state, shall fraudulently dispose of or convert to his own use, or take or secrete with intent to convert to his own use without the consent of his principal, any money or other personal property of his principal which shall have come to his possession or shall be under his charge or control by virtue of his being such agent, servant, employee, trustee, bailee or custodian, as aforesaid, shall be guilty of the crime of embezzlement, and upon conviction thereof, if the money or personal property so embezzled shall be of the value of $100 or under, shall be guilty of a misdemeanor; if the money or personal property so embezzled be of the value of more than $100 such person shall be guilty of a felony, punishable by imprisonment in the state prison not more than 10 years or by a fine not exceeding $5,000.

'In any prosecution under this section, the failure, neglect or refusal of such agent, servant, employee, trustee, bailee or custodian to pay, deliver, or refund to his principal such money or property entrusted to his care upon demand shall be prima facie proof of intent to embezzle'.

First we shall consider the matter of proving intent.More precisely stated, when intent is an element of a crime charged, does Prima facie proof created by statute relieve the people of the burden of proving such intent?Defendant argues that the first paragraph of the statute quoted, Supra, requires that intent be proven, while the second paragraph provides Prima facie proof of intent.He contends that such an ambiguous position should be resolved by requiring the prosecution to prove intent.Defendant also contends that the people have not met their burden of proving the specific intent which is a requisite for conviction under the statute.

A reading of the statute clearly reveals that another construction is possible, one that is more representative of the intent of the legislature.It appears to the Court that the second paragraph simply describes 'intent' as used in the first paragraph.Only a strained reading would result in any ambiguity.This section makes easier the prosecution's difficult task of proving intent in embezzlement cases by means of the presumption of one fact from another which has already been established.

In Leary v. United States(1969), 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57, the Supreme Court reviewed several types of statutory presumptions and established guidelines for testing their validity on constitutional grounds.In its opinion, the Court stated:

'* * * that a criminal statutory presumption must be regarded as 'irrational' or 'arbitrary', and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.And in the judicial assessment the congressional determination favoring the particular presumption must, of course,...