Sparr v. People

• Citation: 122 Colo. 35,219 P.2d 317
• Decision Date: 22 May 1950
• Docket Number: No. 16395,16395
• Parties: SPARR v. PEOPLE.
• Court: Supreme Court of Colorado

Page 317

219 P.2d 317

122 Colo. 35

SPARR v. PEOPLE.

No. 16395.

Supreme Court of Colorado, en Banc.

May 22, 1950.

Strang & Loesch, Montrose, for plaintiff in error.

John W. Metzger, Atty. Gen., Raymond B. Danks, Asst. Atty. Gen., for defendant in error.

MOORE, Justice.

By information filed in the district court for Montrose county, John O. Sparr, to whom reference will hereafter be made as defendant, was charged with embezzlement of one hundred 100-pound sacks of pinto beans, of the value $750.00, the property of O. W. Robinson. The embezzlement allegedly occurred 'on or about' January 8, 1949, at which time defendant was warehouse foreman for Robinson. By the second count of the information defendant is charged with the offense of false pretenses. However, at the conclusion of the people's case, this count was dismissed on motion of the district attorney. The jury returned a verdict finding defendant guilty as charged in the first count. Motion for new trial was thereafter filed, argued, and denied, and defendant was sentenced to serve a term not less than one and one-half years nor more than five years in the state penitentiary.

As grounds for reversal defendant urges that the trial court erred in refusing instructions tendered by him and in giving instructions over his objection, and further, that, 'The evidence is not legally sufficient to sustain the offense of embezzlement.'

The pertinent facts, as shown by the record, are as follows: One O. W. Robinson was engaged in the business of buying, selling and storing beans and farm produce at Montrose, Colorado. At the time of the alleged offense he was operating a warehouse at Olathe, Colorado. The defendant, thirty-seven years of age, was employed by Robinson as warehouse foreman at Olathe, in which employment he continued until a fire partially destroyed the said warehouse in March, 1949. Defendant's duties were to check produce in and out of the warehouse and to operate a bean cleaner in connection therewith. He had no authority to sell beans or produce except occasionally in small quantities. It was a usual practice for a farmer to bring his beans to the warehouse where they were cleaned in the bean cleaner and sacked. The farmer then was paid or credited for the number of sacks so cleaned. While the defendant was acting as foreman, approximately 40,000 sacks of beans were cleaned. In the process of cleaning and sacking there was a certain amount of spillage. Ordinarily the warehouse recovered the spillage and the farmer was not paid therefor. The question of spillage enters into the case by reason of defendant's assertion that his employer, Robinson, told him he could have all the spillage, and defendant claimed that the spillage during the course of his employment would amount to one hundred sacks of beans. Robinson denied that the defendant had any claim to the beans recovered from spillage.

On October 12, 1948, defendant went to the Farmers' Union Supply Company, which operated a bean elevator close to the warehouse where defendant was employed, and offered to sell one hundred sacks of pinto beans which he asserted were then stored in the Robinson warehouse. The said company paid defendant $700.00 for these beans; defendant made no accounting to his employer for said money, and appropriated it to his own use. At the time of this purchase the Farmers' Union Supply Company prepared a receipt showing a transfer of one hundred sacks of beans in the Robinson warehouse to the Farmers' Union Supply Company. This receipt was signed by defendant. At no time was there any physical transfer of the one hundred sacks of beans from the Robinson warehouse to the Farmers' Union Supply Company, nor were any particular sacks of beans pointed out or in any manner identified as being the subject matter of the sale. Defendant testified that in consummating the sale he dealt with a Mr. Hawks, manager of the Farmers' Union Supply Company plant. The following appears in the record of defendant's testimony:

'Q. Did Mr. Hawks know that he was buying your beans? A. Yes, sir.

'Q. Did you so tell him? A. Yes, sir.'

On cross-examination of the witness Hawks, called by the people, he testified in part as follows:

'Q. You had no idea when you bought these beans, did you, Mr. Hawks, that you were buying anything but Joe Sparr's beans? A. That is right.

'Q. If they were Robinson's beans, you did not know it? A. No, sir.

'Q. You were not dealing with Robinson? A. No, sir.

'Q. The only way that Robinson came into the picture was that so far as you knew and so far as you had been informed these beans were in Robinson's warehouse? A. That is right.'

The statute on which the information of this cause is based is section 99, chapter 48, volume 2, '35 C.S.A., the pertinent parts of which are as follows: 'Whoever embezzles or fraudulently converts to his own use, or secretes, with intent to embezzle; or whoever fraudulently converts to his own use, money, goods, or property delivered to him, which may be the subject of larceny, or any part thereof, shall be deemed guilty of larceny and punished accordingly.'

The sole question which we need determine in disposing of this cause, is whether the evidence, construed in the light most favorable to the prosecution, established the necessary elements of the offense of embezzlement under ...