People v. Schoeller, Cr. 4344

• Decision Date: 10 February 1950
• Docket Number: Cr. 4344
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. SCHOELLER.

Page 572

214 P.2d 572

96 Cal.App.2d 55

PEOPLE v. SCHOELLER.

Cr. 4344.

District Court of Appeal, Second District, Division 2, California.

Feb. 10, 1950.

Rehearing Denied Feb. 21, 1950.

Hearing Denied March 9, 1950.

Ray L. Smith, Wm. C. Schaper, Los Angeles, for appellant.

Fred N. Howser, Attorney General, Frank Richards, Deputy Attorney General, William E. Simpson, District Attorney, Jere J. Sullivan, Richard S. Chapman, Deputy District Attorneys, Los Angeles, for respondent.

WILSON, Justice.

Defendant and one Fred DeFrenn were convicted on three counts of violating section 424 of the Penal Code. Their motion for new trial was denied. Defendants appealed from the order denying such motion and from the judgment and sentence. Subsequent to the filing of the appeal DeFrenn died and his appeal has been dismissed.

The sole question for determination is whether the evidence supports the conviction. Defendant contends that there is no evidence (1) that he was a 'qualified and acting person charged with the receipt safe-keeping and transfer of public moneys'; (2) 'that he had in his possession and under his control in his capacity as an officer of the District chargeable by law, a certain thing of value belonging to the District' and (3) 'that he wilfully, unlawfully, feloniously and without authority of law did appropriate said thing of value to his own use thereby making a profit therefrom.'

The pertinent portions of section 424 of the Penal Code are as follows: 'Each officer of this state, or of any county, city, town, or district of this state, and every other person charged with the receipt, safe-keeping, transfer, or disbusement of public moneys, who either:--1. Without authority of law, appropriates the same, or any portion thereof, to his own use, or to the use of another; or, 2. Loans the same or any portion thereof; makes any profit out of, or uses the same for any purpose not authorized by law; * * * Is punishable by imprisonment in the state prison for not less than one nor more than ten years, and is disqualified from hoding any office in this state.'

Defendant admits that he was secretary of the board of directors of the Palmdale Irrigation District but asserts that in such capacity he was not an officer of the district but a mere clerk in its employ; that the only officers of the district are the treasurer, collector and assessor, who are elective officers; that he received no compensation for acting as secretary; he had no power to draw checks and he was never sworn in as an officer of the district, nor did he post any bond.

Defendant testified he was first employed by the Palmdale Irrigation District in June, 1926, as an engineer; he was elected secretary of the board about 1933; he took care of all collections, with the assistance of the women in the office, signed receipts, papers and documents as deputy collector; performed the services of both secretary and collector; he made bank deposits but did not sign checks; bills were paid by a warrant drawn on the treasurer signed by the president and secretary of the board and the treasurer issued a check; the collector and treasurer did nothing.

Mr. McBride testified he was elected treasurer in 1930 and was also the collector; he had nothing to do with collection or recording of collections; he prepared no financial statements, handled no funds and kept no books or records; his only duty consisted of signing the checks when they were presented with the voucher attached signed by the secretary and the president of the board; he had never in the seventeen years he had been in office prepared a collector's or a treasurer's report.

In addition to the three elective officers provided for by statute the board of directors of an irrigation district has the power to 'employ agents, officers, and employees as required' and to 'prescribe their duties and fix their salaries.' Water Code, sec. 21185. The board appointed defendant to the office of secretary of the board and his duties included all those functions ordinarily performed by the collector and treasurer, with the exception of drawing checks. He acted as deputy collector and signed receipts and documents as an officer of the district, presumably with the consent and approval of the board of directors. Defendant was not only an officer of the district but he was also charged with the receipt and safe-keeping of public moneys.

The three transactions involved in the indictment are as follows:

The O'Neill Transaction. In March, 1943, the O'Neills purchased some property from Mr. Walters. Walters was indebted to the district for delinquent assessments and this obligation the O'Neills assumed as part of the purchase price. They executed a promissory note to the district for $1,000, secured by a deed of trust. The O'Neills made one interest payment to the district and prior to the time the second payment became due defendant told Mrs. O'Neill that Mr. DeFrenn had purchased the paper and to make future payments to him. Defendant also advised Mr. O'Neill to the same effect whereupon O'Neill requested a letter from the district that such was the case. Defendant said he would send the letter but failed to do so. The O'Neills made two interest payments to DeFrenn. When the principal payment became due defendant told the O'Neills to make their payments to the district. The balance of the principal and interest payments were made to the district. DeFrenn was a director of the Palmdale Irrigation District. The O'Neill note was assigned to DeFrenn's wife on January 6, 1944, the endorsement on the note being signed 'Palmdale Irrigation District, H. P. Schoeller, Sec'.' The note was subsequently reassigned to the district by Norine DeFrenn. In the cash received record of the district under date of January 6, 1944, is an entry reading 'J. F. O'Neill (Bal. on Walters purchase) $800.00.' Above the entry is written the words ...