People v. Riggins

• Decision Date: 24 January 1958
• Docket Number: No. 34498,34498
• Citation: 13 Ill.2d 134,148 N.E.2d 450
• Parties: The PEOPLE of the State of Illinois, Defendant in Error, v. Marven E. RIGGINS, Plainiff in Error.
• Court: Illinois Supreme Court

Page 450

148 N.E.2d 450

13 Ill.2d 134

The PEOPLE of the State of Illinois, Defendant in Error, v. Marven E. RIGGINS, Plainiff in Error.

No. 34498.

Supreme Court of Illinois.

Jan. 24, 1958.

Rehearing Denied March 19, 1958.

Gutnecht, Block & Snewind, Chicago, (Charles D. Snewind, Chicago, of counsel), for plaintiff in error.

Latham Castle, Atty. Gen., John B. Anderson, State's Atty., Rockford (Fred G. Leach, Decatur, William H. South, Carmi, Rosario A. Gaziano, Rockford, of counsel), for defendant in error.

DAILY, Justice.

In 1955, defendant, Marven E. Riggins, was convicted of embezzlement after a jury trial in the circuit court of Winnebago County and was sentenced to the penitentiary for a term of not less than two nor more than seven years. We reversed the judgment for a trial error and remanded the cause for a new trial. People v. Riggins, 8 Ill.2d 78, 132 N.E.2d 519, 928, 56 A.L.R.2d 1149. Thereafter a new indictment charging the same offense was returned to the circuit court, defendant was tried and again found guilty by a jury, and was sentenced to the penitentiary a term of not less than one nor more than three years. This writ of error is prosecuted to review the second judgment of conviction.

The principal question presented and determined in our previous opinion, where the pertinent facts may be found, was whether defendant, the operator of a collection agency, was the agent of the complaining witness, for whom he collected delinquent accounts, within the purview of Illinois embezzlement laws. This query was answered in the affirmative. Defendant's present counsel have again raised the issue of the statute's application and, in doing so, advance the views already rejected by the majority of this court. Upon a reexamination of the question in face of additional authority and new argument, we find nothing which impels us to depart from or elaborate upon our previous findings. We thus reiterate the conclusion that 'defendant was an 'agent' of the complaining witness, receiving money in a 'fiduciary capacity' and, therefore, within the purview of said embezzlement statute.' See: 8 Ill.2d at page 84, 132 N.E.2d at page 522; Ill.Rev.Stat.1953, chap. 38, par. 210.

The jury found defendant guilty of larceny by embezzlement and its verdict fixed the value of the stolen property at $254, or the amount involved in what is referred to in the record as the 'Billberry account.' It is defendant's initial contention that the evidence fails to establish his guilt beyond a reasonable doubt with respect to such account.

Undisputed proof shows that in the latter part of 1953, Billberry's $264.50 account with the jewelry store operated by the complaining witness had become delinquent and was one of several given to defendant for collection. Under terms agreed upon by the parties earlier in the year, defendant was liable for any court costs incurred and was to remit no money until the account was collected in full, at which time the entire amount would be delivered to the complaining witness who would then pay defendant a commission. Defendant contacted Billberry who made a $10 payment directly to the jewelry store but made no further payments. As a result defendant instituted proceedings in the court of a justice of the peace named Cook and, through successive garnishment actions in January, March, April, May, and June, 1954, caused the account to be reduced to $109.14. All payments were made to Cook's office and, on July 2, 1954, Billberry made a cash payment for the balance due. No part of the $254.50 so collected was ever received by the complaining witness. It appears, rather, that defendant used $145.36 to discharge a personal obligation with Cook and received from Cook $109.14 in cash. The exact disposition or use that was made of the latter amount does not appear, but defendant testified it was his custom to deposit money collected for the jewelry store in a checking account he used for business and personal expenses alike. He closed his business on December 1, 1954, and, within several days, filed a petition a petition in bankruptcy in which he listed Cooper Jewelry as a creditor in the sum of $500. The original indictment in the cause followed shortly.

Generally, embezzlement consists of the accused's conversion of another's funds in his possession in a fiduciary capacity, and the crime is complete when there is a fraudulent conversion without the owner's consent. People v. Schnepp, 362 Ill. 495, 200 N.E. 338; People v. Mooney, 303 Ill. 469, 135 N.E. 776. Based upon People v. Henderson, 378 Ill. 436, 38 N.E.2d 727, it is said in 17 I.L.P., Embezzlement, sec. 3: 'To establish embezzlement by an officer, clerk, agent, solicitor, broker, or apprentice, as penalized by S.H.A. chap. 38, par. 210, four elements of fact must be proved. It must be shown that the accused was by the terms of his employment charged with the duty to receive money or property of his principal, that he obtained possession thereof, that such possession was in the due course of his employment, and that, although he knew that the money or property did not belong to him, he converted it to his own use or to the use of someone not the real owner.' The same treatise on Illinois law reflects the view of this court that criminal intent is an essential element of the crime, although our statute defining the offense fails so to delare it, and points out that guilty intent is necessarily inferred from voluntary acts of the accused depriving his principal or employer of his property. Embezzlement, sec. 4; see also: People v. Stevens, 358 Ill. 391, 193 N.E. 154; People v. Cowgill, 334 Ill. 635, 166 N.E. 535.

Looking to decisions which state that the absence of secrecy and concealment are circumstnaces tending to negative the charge that one accused of embezzlement was actuated by a felonious intent (People v. Parker, 335 Ill. 258, 189 N.E. 352; People v. Davis, 269 Ill. 256, 110 N.E. 9; McElroy v. People, 202 Ill. 473, 66 N.E. 1058), defendant rationalizes that the proof of intent fails in this case inasmuch as he at all times admitted his indebtedness for the Billberry account and never attempted to conceal his use of the money collected on it. Foundation for such claim rests upon two conversations defendant said he had with the complaining witness when they met for the purpose of going over all accounts in his hands. Defendant testified he first told the complaining witness in June, 1954, that the Billberry account had been paid in full (which is in contradiction of documentary proof showing final payment was not until July 2, 1954), that he told her he did not have the money, and that she could credit the amount due her against commissions he would earn on other accounts. Describing a second conversation in October, 1954, defendant testified he told her 'Billberry had been paid and that I would get her the money,' that he told her he was short of money and would bring it to her in a few days, and that she said it would be all right. On direct examination the complaining witness related she learned from defendant in October, 1954, that the Billberry account had been paid in full, and that he then represented 'he would give me the money over in the store.' When testifying in rebuttal she denied defendant had ever told her he was in financial difficulty, denied that she had ever given him permission to use the money, and related that his only representation with respect to the Billberry account was that he would get the money and bring it in.

If the prosecuting witness is to be believed, the defendant concealed his use of the money and postponed discovery by promises to bring it in; if defendant is to be believed he at all times accounted for the money and was given extended time in which to remit it. No citation of authority is necessary fo the proposition that...