Saulmon v. State
| Decision Date | 22 July 1980 |
| Docket Number | No. F-79-32,F-79-32 |
| Citation | 614 P.2d 83 |
| Parties | I. R. "Bud" SAULMON, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
The appellant was convicted of Embezzlement by Trustee, After Former Conviction of a Felony, in the District Court of Oklahoma County, Case No. CRF-77-4476. A six and one-half (61/2) year sentence was imposed.
The conviction stems from the appellant's initial withdrawal of $5,000.00 from the savings account of an 80-year-old lady, Grace Stephenson. She had executed a power of attorney agreement with the appellant, who claimed to be her great-nephew. They became acquainted through his employment with an area-wide aging agency. Both he and Ms. Stephenson testified that they considered this transaction to be a loan.
The evidence reflects that the appellant used a portion of the money to purchase a pickup truck, and that he had a check made out to Ms. Stephenson, endorsed by her and also by him showing his power of attorney for the remaining $1,400.00, which he cashed. An arrangement was worked out whereby the appellant purchased groceries for Ms. Stephenson, and she signed the checks. One month's grocery check was $482.51. When questioned about these expenditures by persons associated with the area-wide aging agency, the appellant disclaimed responsibility. Following several similar incidents involving the appellant's use of Ms. Stephenson's funds, she was advised by an attorney and the aging agency in contacting the bank and revoking the power of attorney.
Following the revocation of the power of attorney, an attempted withdrawal by the appellant on December 13, 1977, of the remainder of the balance in Ms. Stephenson's account some $5,319.69 was unsuccessful. His arrest followed that incident.
In his first two propositions of error the appellant complains that (1) there was a fatal variance between the information and the proof; and (2) that the trial court erred in its instructions to the jury. The information reflects the charge as "Embezzlement by a Trustee 21 O.S.1971, § 1455." That statute, defining "Embezzlement by a Bailee," expressly mentions persons who have a power of attorney and misuse it. It is the appellant's position that it was error to charge him with "Embezzlement by a Trustee," and then prove "Embezzlement by a Bailee." Further, he complains that after the State proved "Embezzlement by a Bailee" the trial court improperly instructed on "Embezzlement by a Trustee."
After a careful reading of the record this Court finds no merit to the appellant's claim. Close scrutiny of Section 1454 reflects the statute relates to "Property taken under claim of title" as distinguished from a bailment. 1 In this case there is no ambiguity in the allegations of fact. The State clearly pled and proved that the appellant was a trustee of property belonging to another and that he violated that trust by converting certain monies to his own use and benefit. We, therefore, regard the descriptive label to Section 1455 as a clerical error and not a fatal variance between the charge and the proof, because it is clear from the allegations of fact what crime is being charged. See Curtis v. State, 86 Okl.Cr. 332, 193 P.2d 309 (1948); Banks v. State, Okl.Cr., 578 P.2d 370 (1978). Having determined there was no variance between the charge and the proof, we find that the instructions given by the trial court were proper.
Next contested is whether the trial court properly admitted evidence of the appellant's attempt to withdraw $5,319.69 from Ms. Stephenson's account on December 13, 1977. This incident occurred some two weeks after the date of the principal charge. He argues the incident was too remote, and submits Worchester v. State, Okl.Cr., 536 P.2d 995 (1975), for the general rule that one is to be convicted, if at all, by evidence which shows his guilt for the offense charged alone and forbids the introduction of evidence of other crimes.
On the other hand, there are five generally recognized exceptions to this rule to establish: (1) motive, (2) intent, (3) absence of mistake or accident, (4) identity, or (5) a common scheme or plan which embraces the commission of two or more crimes so related to each other that proof of one tends to establish the other. Atnip v. State, Okl.Cr., 564 P.2d 660 (1977).
The questioned evidence was admitted by the trial court to show the appellant's intent to embezzle funds. In considering admissibility of similar evidence this Court in Bewley v. State, Okl.Cr., 404 P.2d 39 (1965), cited with approval Fitzgerald v. State, 85 Okl.Cr. 376, 188 P.2d 396 (1947):
We think there was a visible connection between these incidents and that evidence of the December 13th incident is both related in time (two weeks later) and circumstances to the offense charged as to have substantial probative value of the appellant's intent to embezzle, particularly in light of the appellant's claim that the transaction was merely a loan. The trial court, therefore, did not err in admitting this evidence. 2
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Tucker v. State
...of moral turpitude as "anything done contrary to justice, honesty, modesty, or good morals." Saulmon v. State , 1980 OK CR 58, ¶ 12, 614 P.2d 83, 86. Saulmon appears to limit this broad language in the initial sentence by describing crimes of moral turpitude as including embezzlement, forge......