Smith v. State

• Decision Date: 19 April 1944
• Docket Number: A-10195.
• Citation: 148 P.2d 206,78 Okla.Crim. 343
• Parties: SMITH v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

148 P.2d 206

78 Okla.Crim. 343

SMITH v. STATE.

No. A-10195.

Court of Criminal Appeals of Oklahoma

April 19, 1944

Syllabus by the Court.

1. Embezzlement is the fraudulent appropriation of property by a person to whom it has been entrusted. Tit. 21 O.S.A.1941 § 1451.

2. When one converts the money of another to his own use without permission from the lawful owner thereof, the law infers a fraudulent intent and punishes the act of embezzlement.

3. If money or property is delivered by a third person to an agent or servant for or on account of his principal or master, the agent or servant has the possession, and is in the position of a mere bailee, until he has delivered the money or property to the principal or master, or put it, intending to do so for the principal or master, where it is his duty to put it, and if he fraudulently converts it before this, his offense is embezzlement.

4. An agent is one to whom is delegated authority to act for and in the name of his employer, and who is not under his employer's immediate direction and control. The relation may exist without any formal appointment.

5. Where one executes a deed to property conveying it to another with the understanding and purpose that he shall secure a loan thereon and pay the proceeds thereof to the owner of the property, the law presumes that he is acting as agent in procuring the loan and accounting for the proceeds, and if he secures the loan and appropriates the money received to his own use and benefit he may be guilty of embezzlement.

6. Where one claimed that he had permission to use the money which came into his possession, and this was denied, it was proper for the court to submit this issue to the jury that they might pass upon it as a question of fact.

7. Where the motion for new trial was overruled on June 16 1941, and a new motion was filed on August 22, 1941, upon the grounds of newly discovered evidence; record examined and found that the court did not err in overruling the same.

Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.

Nettie L. Smith was convicted of embezzlement, and she appeals.

Affirmed.

Mac Q Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Lewis R. Morris, Co. Atty., of Oklahoma City, for defendant in error.

BAREFOOT Judge.

Defendant Nettie L. Smith, was charged in the District Court of Oklahoma County with the crime of embezzlement; was tried, convicted and sentenced to serve a term of three years in the State Penitentiary, and has appealed.

It is contended by defendant that the judgment and sentence in this case is contrary to law, and that the evidence is insufficient to support the same.

The facts as revealed by the record are that the defendant, Nettie L. Smith, lived in Oklahoma City with her husband, Alex Smith. Rhiner Ivey lived about fifteen miles northeast of Oklahoma City. Nettie L. Smith and Rhiner Ivey first became acquainted in 1919, when Rhiner Ivey went to the defendant for some treatments for rheumatism. All of the parties are Negroes. Rhiner Ivey had at one time owned eighty acres of land in Oklahoma County, and was still the owner of forty-three acres in the early part of 1940, when she decided to borrow some money on the land, for the purpose of making improvements thereon. She went to the defendant, taking the deed she had received to the eighty acres of land, and talked with defendant about a loan. She wanted to borrow $1,500. Defendant agreed to assist her in securing a loan on her property. In order to carry out this agreement, Rhiner Ivey executed a deed, conveying the entire eighty acres to the defendant (copying the description from the original deed to Rhiner Ivey). According to the testimony of Rhiner Ivey, defendant was to secure the loan in ten or fifteen days, and then deed the property back to her, giving her the $1,500. Defendant claimed that the agreement was that she was to have $500 and Rhiner Ivey $1,000. After some negotiations, the defendant was unable to secure a loan of $1,500 on the property, but found a party who agreed to lend her $1,000. Defendant and her husband executed a mortgage on the property to secure the $1,000 note. The party from whom she was borrowing the money ordered an abstract, and when he found that she only had title to forty-three acres, refused to let her have $1,000. He paid out a total of $139.65 for the abstract, taxes due, attorney fees, etc., and gave the defendant two checks, at different dates, aggregating $505.35, and credited the $1,000 note with $355.

The evidence revealed that all of the money received by defendant was appropriated to her own use and private benefit, and none of the proceeds were ever delivered by her to Rhiner Ivey, the owner of the land. It was also revealed that the defendant attempted to secure another loan on the land, with the intention of paying off the first loan, and securing additional funds. This deal was never consummated. Defendant later filed a petition in bankruptcy, and during these proceedings she executed a deed, reconveying the land to the prosecuting witness, Rhiner Ivey; but no part of the $505.35 was at any time paid by defendant to the prosecuting witness.

Under these facts, it is the contention of defendant that by reason of a deed having been executed by Rhiner Ivey to defendant, it was necessary to prove that an express trust existed, and that under the law this could not be proven by parol testimony. Authorities are cited to sustain this proposition. A great part of the brief of defendant is devoted to a discussion of the law as it relates to express trusts, and resulting trusts, with reference to the conveyance of real estate. We do not see that any such issue is material to the issues here involved. Under the evidence the defendant was the agent of Rhiner Ivey for the purpose of securing a loan upon her property, and according to her testimony to deliver to her the proceeds of the loan when the deal was consummated. The prosecuting witness with complete confidence in defendant, deeded her the property for this purpose. Defendant by her own testimony admits that she received the sum of $505.35 and appropriated the same to her own use. Her testimony was that she was to have the privilege of using $500 of the money. The court in a clear-cut instruction submitted this issue to the jury, instructing them that if they found that Rhiner Ivey had agreed with defendant that she could use approximately $500 of the money, or if Rhiner Ivey knew she had received the $505.35 and gave the defendant permission to keep the same, or if she agreed that defendant could repay the same when due according to the terms of the note and mortgage, that it would not constitute embezzlement, and that they should return a verdict of not guilty. This instruction clearly presented the defense of the defendant, and the jury in returning a verdict of guilty clearly found against the contention of defendant.

Tit. 21 O.S.A.1941 § 1451 defines embezzlement:

"Embezzlement is the fraudulent appropriation of property by a person to whom it has been entrusted."

The statute under which defendant was charged is Tit. 21, O.S.A.1941 § 1454, which is as follows:

"If any person being a trustee, banker, merchant, broker, attorney, agent, assignee in trust, executor, administrator or collector, or being otherwise entrusted with or having in his control property for the use of any other person, or for any public or benevolent purpose; fraudulently appropriates it to any use or purpose not in the due and lawful execution of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, he is guilty of embezzlement."

In construing the above statutes, it is said, in the case of State v. Duerksen, 8 Okl.Cr. 601, 129 P. 881, 882, 52 L.R.A.,N.S., 1013:

"When one converts the money of another to his own use, without permission from the lawful owner thereof, the law infers a fraudulent intent, and punishes the act of embezzlement. The fact that a person never concealed the taking or converting of the money received, as the money in this case was, and promises to return it, does not make the act lawful or any the less embezzlement under the statute."

See also Abernathy v. State, 69 Okl.Cr. 142, 101 P.2d 634.

In Brill's Cyclopedia Criminal Law, Vol. 1, pg. 876, section 523, it is said:

"If money or property is delivered by a third person to an agent or servant for or on account of his principal or master, the agent or servant has the possession, and is in the position of a mere bailee, until he has delivered the money or property to the principal or master, or put it, intending to do so for the principal or master, where it is his duty

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