State v. Cavanaugh
| Decision Date | 10 April 1931 |
| Docket Number | No. 40384.,40384. |
| Citation | 214 Iowa 457,236 N.W. 96 |
| Parties | STATE v. CAVANAUGH. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; John M. Rankin, Judge.
The defendant was charged by county attorney's information with the crime of embezzlement as a bailee. He entered a plea of not guilty, and upon trial was convicted and sentenced, and he prosecutes this appeal.
Affirmed.
Parsons & Mills, of Des Moines, for appellant.
John Fletcher, Atty. Gen., Carl S. Missildine, Co. Atty., and Alex M. Miller, Asst. Co. Atty., both of Des Moines, for the State.
On or about June 9, 1925, one Margaret C. Barnett borrowed the sum of $2,000 of the appellant and gave her notes therefor, payable June 9, 1930, with interest at 7 per cent., and secured the same by a real estate mortgage on certain property in the city of Des Moines. On June 15, 1925, the appellant sold said notes to Katherine E. Frawley and assigned said mortgage to her. The assignment was not placed of record. In January, 1927, the debtor Mrs. Barnett, by her agent, delivered to the appellant a check for $2,000 payable to his order, and a second check for $11.67, the two checks covering the total amount then due on said two notes. At that time the appellant was advised that the money was paid to the appellant in satisfaction of said notes and mortgage. The appellant indorsed the checks and cashed them. On January 10, 1927, the appellant released said mortgage of record. The purchaser of the notes, Mrs. Frawley, had never authorized the appellant to collect the notes. At the time appellant received the money he executed a receipt as follows:
“Des Moines, Iowa, January 10, 1927.
Received of Margaret C. Barnett $2,011.67 of which $2,000.00 is the principal of the loan of the amounts secured by a mortgage on the No. 47 feet, the north 80 feet of lot 12 of the property described in the mortgage, Exhibit No. ‘3.’
Signed, B. J. Cavanaugh.”
The material part of the county attorney's information under which the appellant was prosecuted, is as follows:
“Information for Embezzlement by Bailee.
Comes now Carl S. Missildine, County Attorney of Polk County, State of Iowa, and in the name and by authority of the State of Iowa, accuses B. J. Cavanaugh of the crime of Embezzlement by Bailee Committed as follows:
The said B. J. Cavanaugh on or about the 10th day of January, A. D., 1927, in the County of Polk and State of Iowa,
Embezzled and fraudulently converted to his own use or secreted with intent to embezzle and fraudulently convert to his own use about $2,000.00, delivered to him by Margaret C. Barnett which the said B. J. Cavanaugh received into his possession and control as bailee for Katherine E. Frawley.”
[1] The appellant argues but one proposition in this court, and under a familiar rule the other errors which are assigned and not argued are deemed waived. State v. Neifert, 206 Iowa, 384, 220 N. W. 32;State v. Harding, 204 Iowa, 1135, 216 N. W. 642;State v. Gibson, 204 Iowa, 1306, 214 N. W. 743;State v. Ivey, 196 Iowa, 270, 194 N. W. 262;State v. Derry, 202 Iowa, 352, 209 N. W. 514.
The sole question for our determination upon this appeal, then, is: Under the undisputed facts, and under the allegations of the county attorney's information, can the defendant be held liable for embezzlement as a bailee?
Code, § 13030, is as follows: “Whoever embezzles or fraudulently converts to his own use, or secretes with intent to embezzle or fraudulently convert to his own use, money, goods, or property delivered to him, or any part thereof, which may be the subject of larceny, shall be guilty of larceny and punished accordingly.”
Code, § 13031, provides for the punishment for embezzlement by officers, agents, clerks, servants, and other similar persons.
Appellant places reliance upon the case of State v. Cooper, 102 Iowa, 146, 71 N. W. 197. In that action the defendant was accused of larceny by embezzlement. The case turned upon the question as to whether or not, under the facts disclosed, the defendant received the money which he was charged with having embezzled as the agent of a certain party. The case is not controlling in the instant case for the very good and sufficient reason that it was decided before the statute under which the present information was filed and enacted. In the Cooper Case the indictment was brought under the section of the statute referring to larceny by an agent, which is now embodied in Code, § 13031, above referred to. Code, § 13030, providing for the punishment for embezzlement by a bailee, first became a statute in the Code of 1897, and the Cooper Case had no reference to it.
The appellant also relies upon State v. Folger, 204 Iowa, 1296, 210 N. W. 580. In said case we clearly pointed out the distinction between the two statutes, one providing the punishment for...
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