State v. Ankeny

• Decision Date: 22 March 1949
• Citation: 204 P.2d 133,185 Or. 549
• Parties: STATE <I>v.</I> ANKENY
• Court: Oregon Supreme Court

185 Or. 549

204 P.2d 133

STATE

v. ANKENY

Supreme Court of Oregon.

Argued January 13, 1949.

Affirmed March 22, 1949.

Embezzlement — Broker — Short sale — Failure to deliver stock — Confirmation slip — Some evidence — Not conclusive

1. In prosecution for larceny by bailee, where issue was whether defendant broker received money from customer as bailee to purchase for customer certain stock and failed to do so or whether defendant, as a principal, made a short sale to customer and failed to deliver stock, confirmation slip reciting that defendant as principal had sold to customer certain shares of stock at a specified price was some evidence that defendant had sold stock as owner thereof, but was not conclusive and state had right to show real transaction.

Bailment — Check — To be used to purchase designated stock for customer — Bailor and bailee

2. Where a check is given by customer to stock broker with understanding that it should be used to purchase designated stock for customer, relationship of bailor and bailee exists between customer and broker.

Embezzlement — Sufficient proof of subject matter of bailment

3. In prosecution for larceny by bailee, proof that customer gave defendant stock broker a check for a specified sum with which to purchase for customer specified stock, and that defendant failed to do so, and proof that defendant cashed the check and misappropriated the money received from it was sufficient proof of the subject matter of the alleged bailment.

Criminal law — Jurisdiction — Defendant's place of business — Check drawn on a certain bank and deposited by defendant in another bank — All in same county — Offense committed in that county

4. In prosecution for larceny by bailee, on question of jurisdiction, testimony that defendant's place of business was in Klamath Falls, that customer left his check at defendant's place of business with instructions to purchase certain stock for customer, which check was drawn on a Klamath Falls bank and deposited by defendant in another Klamath Falls bank was sufficient proof that offense was committed in Klamath County.

Criminal law — Similar independent offenses — Admissible to prove intent or knowledge which has become the material issue

5. An exception to the rule excluding evidence of crimes other than that charged occurs when commission of act charged is practically admitted by defendant, who seeks to avoid criminal responsibility

therefor by relying upon lack of intent or want of guilty knowledge, in which case evidence of commission by him of similar independent offenses is admissible to prove such intent or knowledge which has become the material issue for trial.

Criminal law — Crime committed by use of novel means — Particular manner — Similar offenses by use of such means or in such manner admissible

6. When a crime has been committed by use of a novel means or in a particular manner, evidence of defendant's commission of similar offenses by use of such means or in such manner is admissible against him.

Criminal law — Similar transactions — Admissible to show criminal intent as tending to establish a common scheme, plan or system

7. In prosecution for larceny by bailee, where defendant stock broker maintained throughout trial that money which he received on customer's check was his own money and was not received by him as bailee, evidence of similar transactions was admissible to show criminal intent on part of defendant as tending to establish a common scheme, plan or system.

Criminal law — Crime — Act accompanied by criminal intent or its equivalent

8. To constitute a "crime" the act must, except as otherwise provided by statute, be accompanied by criminal intent on part of accused or by such negligent and reckless conduct and indifference to the consequences of conduct as is regarded by the law as equivalent to a criminal intent.

See Words and Phrases, Permanent Edition, for other judicial constructions and definitions of "Crime".

Criminal law — Requested instructions substantially covered by instructions given

9. Refusal to give requested instructions which are substantially covered by instructions given is not error.

Criminal law — Requested instruction — Abstract — Want of any evidence on the subject matter

10. Where requested instruction is abstract for want of any evidence on the subject matter thereof, refusal to give instruction is not error.

Embezzlement — Larceny by bailee — Demand to deliver up subject matter — Not necessary

11. In prosecution for larceny by bailee, it was not necessary to a conviction that prosecuting witness must first have made a demand upon defendant to deliver up subject matter of bailment.

Embezzlement — Evidence of defendant's guilt was for jury

12. In prosecution of stock broker for larceny by bailee, evidence of defendant's guilt was for jury.

                  See 29 C.J.S., Embezzlement, § 42
                  146 A.L.R., 532
                  18 Am. Jur., 590
                

Appeal from Circuit Court, Klamath County.

DAVID R. VANDENBERG, Judge.

Ben Anderson argued the cause for appellant. On the brief were Lord, Anderson & Franklin, of Portland.

Clarence A. Humble, District Attorney, of Klamath Falls, argued the cause for respondent. With him on the brief were George Neuner, Attorney General, of Salem, and J.H. Napier and U.S. Balentine, Deputy District Attorneys, of Klamath Falls.

Before LUSK, Chief Justice, and BELT, ROSSMAN, BAILEY and HAY, Justices.

Lewis Ankeny was convicted of larceny by bailee and he appeals.

AFFIRMED.

BAILEY, J.

In December, 1946, an indictment was returned against defendant, Lewis Ankeny, by which the grand jury of the County of Klamath accused him of the crime of larceny by bailee committed as follows:

"The said Lewis Ankeny on the 31st day of July, A.D. 1946 in the said County of Klamath and State of Oregon, then and there being, and the said Lewis Ankeny then and there being the owner and operator of Lewis Ankeny & Co., and the said Lewis Ankeny then and there being bailee of $1676.37, lawful money of the United States of America, a more particular description of which is to this Grand Jury unknown, all being the personal property of Gus A. Anderson and Veva Anderson, did then and there unlawfully, wilfully and feloniously fail, neglect and refuse to deliver, keep and account for said property according to the nature of his trust; contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon."

The case was tried before the court and a jury. A verdict of guilty was returned and from the judgment on conviction defendant has appealed.

Three assignments of error are set forth in defendant's brief. The first assignment is as follows: "The Court erred in overruling defendant's motion to dismiss the indictment and discharge the defendant in that there is no substantial evidence to support the charge as laid in the indictment." Under this assignment three propositions of law are discussed, to wit:

"I. The State failed to prove that the relationship of bailor and bailee existed between the complaining witness Gus Anderson and the defendant.

"II. The State failed to prove the subject matter of the alleged bailment as in the indictment charged, to-wit: $1676.37 lawful money of the United States of America.

"III. The State failed to prove that the alleged crime was committed in Klamath County, Oregon."

In December, 1945, defendant established an investment and securities business in Klamath Falls. He was licensed by the Federal Securities Exchange Commission and by the State of Oregon to buy and sell corporate stock. According to defendant's testimony in some instances he sold to his customer as principal the stock which he wanted to buy. In other instances he would act as broker and buy on the market for his customers the stock which they ordered.

On August 1, 1946, one Gus Anderson gave to defendant his personal check for $1,676.37, with the request, as claimed by Mr. Anderson, that defendant purchase for him and his wife 35 shares of stock in Marshall Field & Company. Relating to this transaction Mr. Anderson testified in part as follows:

"Q. Mr. Anderson, did you ever leave any money with the defendant? A. Yes, sir.

"Q. How much, and on what occasion? A. Well, I paid for stock he bought for me, sixteen and some seventy-six dollars, or something like that.

"Q. You placed that money with the defendant, did you? A. Yes.

"Q. What was that money for? A. He was to purchase 35 shares of Marshall Field stock.

* * *

"Q. What was your purpose of turning the money over to the defendant, in the amount of $1676.39, that you have heretofore testified to, represented by state's exhibit # 1? What was the purpose for turning that money over? A. He was to purchase 35 shares of Marshall Field stock.

"Q. And state whether or not he was to pay for it out of that money? A. Yes, he was. I paid him for it, yes.

"Q. When was he to make that purchase? A. Immediately, right away.

* * *

"Q. Well now, you paid that over to him as payment for stock, did you not, — the purchase of stock? You bought stock, that was your understanding, was it not? A. He bought stock for me.

"Q. Well, you bought stock, did you not? A. I gave him an order of purchase.

* * * "Q. You did not talk to Ankeny about any commission, did you? A. No, I told him to purchase this stock for me.

* * *

"Q. When you turned over this check to Mr. Ankeny, so far as you were concerned, that was his money then to do with as he pleased? You had the stock coming? A. He was to purchase stock for me."

In April, May, or June, 1946, defendant had financial difficulties with Sutro & Company, of San Francisco, which resulted in Sutro & Company selling all the securities which defendant had with them except some oil stock. During August and the first part of September the defendant received from his customers many thousands of dollars for which no stock or securities were delivered by him to them. On the...