State v. Coleman

• Decision Date: 12 October 1926
• Citation: 249 P. 1049,119 Or. 430
• Parties: STATE v. COLEMAN.
• Court: Oregon Supreme Court

249 P. 1049

119 Or. 430

STATE v. COLEMAN.

Supreme Court of Oregon

October 12, 1926

Department 2.

Appeal from Circuit Court, Wasco County; Fred W. Wilson, Judge.

Giles L. Coleman was convicted of larceny in an office, and he appeals. Affirmed.

The defendant was accused by the grand jury of the circuit court of the state of Oregon, for Wasco county, of the crime of larceny in an office, of $256.36, lawful money of the United States of America, and the personal property of Wasco county Or. Upon his arraignment, be entered a plea of not guilty to the indictment. He was tried and found guilty, and judgment was entered upon the verdict whereby he was sentenced to serve three years in the penitentiary. On appeal to this court, he asserts that the court erred in receiving certain evidence and in rejecting other evidence, and in denying defendant's request for certain instructions.

R. R. Butler, of The Dalles (Van Vactor & Butler, of The Dalles, on the brief), for appellant.

Francis V. Galloway, Dist. Atty., of The Dalles (I. H. Van Winkle Atty. Gen., on the brief) for the State.

BROWN J.

At the time of the alleged commission of the offense, the defendant with his family, was living in the basement of the courthouse of Wasco county. He was head janitor of that building and had a pass key to all of the rooms therein. He was also a general deputy sheriff of that county and was specially charged, by instructions from the sheriff, with the performance of the duties of jailer. In the execution of these duties, he carried meals to the prisoners and looked after the jail in general. The sheriff's office being situate in the courthouse, the defendant had access thereto as janitor, as well as in his capacity of deputy sheriff. On the date of the alleged larceny, George Scherrer and Dorothy Bailey were also deputies, and, as such, they were charged by the sheriff with, and their duties consisted of, the collection of taxes and the performance of all necessary office work in relation thereto. The defendant collected no taxes or any other moneys for Wasco county. The tax money when collected, was placed in a vault in the sheriff's office, the inside doors of which were locked and unlocked with a key, the outer doors being opened by a combination. The office was regularly closed from 12 m. to 1 p. m. Before leaving the office at noon, the deputies habitually locked the inside doors of the vault, leaving the outer doors open. But three keys were known to be in existence that would unlock the inner doors of the vault. On one occasion the defendant had had an additional key made for the use of the office, but no key was ever given to him for his use.

Levi Chrisman, the sheriff, testified that he had been sheriff of Wasco county since July 2, 1906, and that he had appointed the defendant a deputy. He testified concerning the location of the vault; that it was open from 8 a. m. until noon; that the inside doors were locked from 12 m. to 1 p. m., and again opened from 1 to 5 p. m.; that on May 15, 1925, feeling ill, he went to town "and got a light lunch." He said:

"For several days I had been on the sick list. I was feeling very bad, and Friday I felt worse than usual. * * * I thought I would come up to the office and lie down. * * * I came up to the office and came in, and I guess it must have been about five minutes past twelve. I did not look at my watch. And when I opened the door, as quick as a flash I seen somebody--I knew it was a person--jump from the vault into the cloakroom. Automatically, I felt back to see if my gun was handy and walked around, * * * as the door opened towards the front door, and it was about half open, and by the time I got back to see who was in the cloakroom, I could see that the safe door was unlocked, plainly in view, and I seen who I recognized as Mr. Coleman there; and he was squatted down and he seemed to be working on his hands some way. * * * He immediately got up and came out and he says: 'Miss Howell is looking for you. Come on, Levi; let's go and see Miss Howell;' very much excited, extremely so; and I says, 'I don't want to see Miss Howell.' He says: 'Yes; come on. Let's see Miss Howell. She is hollering for you.' * * * I said: 'I don't want to see Miss Howell.' He says: 'You come on. You want to see Miss Howell.' And I says: 'To h____ with Miss Howell.' And he got around to the end of the counter and started towards the front door and made four or five steps and then whirled around and comes back. He was very much excited and he says: 'Let us go down stairs, Levi.' I says: 'I don't want to go down stairs.' He says: 'Yes; come on. Let's go down.' I says: 'No; I don't want to go down stairs.' He says: 'Yes; come on. I want a drink.' I says: 'I am not going down stairs.' With that, he went out through the office."

Witness testified that he examined the vault and found that the inner doors were unlocked and open; that, when the office deputies returned about 1 o'clock, he instructed them immediately to make a check of the cash and find how things stood; that, on making the check, they found a shortage in the tax moneys of the amount charged in the indictment.

The record is replete with instances of the suspicious conduct of the defendant from the time the sheriff discovered him in the office, as above set out, until his arrest. The testimony tends to show that, on one occasion, he went into the office and returned $80 to the vault; that he confessed to taking the money; and that he attempted to make arrangements with Deputy George Scherrer to replace the balance. Upon the trial, he vigorously contested the charge contained in the indictment, and denied both the taking and the confession.

The important point in this appeal relates to the court's denial of the defendant's motion to direct an acquittal. A discussion of this point embraces the applicability of defendant's requested instructions numbered 1 and 2, directing a verdict of not guilty. Defendant's counsel forcefully maintain the position that, if their client is guilty of the crime of taking the moneys described in the indictment, he is guilty of the crime of embezzlement, as defined by section 1955, Oregon Laws, or the crime of larceny of public moneys, as defined by section 1957, Oregon Laws, but that he is not guilty of larceny in an office, as set down by section 1948, Oregon Laws.

At the conclusion of the state's case in chief, the defendant moved the court as follows:

"At this time the defendant moves the court for an order directing the jury to return a verdict of not guilty for the following reasons: That this is an indictment charging the defendant with larceny from an office; that it plainly appears, and affirmatively appears, that the elements necessary to constitute larceny are wholly lacking, in that one of the chief ingredients of larceny is trespass; and it affirmatively appears that, at the time of the alleged taking, the defendant was a duly appointed, qualified, and acting deputy sheriff of Wasco county, Or., under appointment of the duly appointed, qualified, and acting sheriff of Wasco county, Or.; and section 1037 of Oregon Laws provides that a deputy sheriff has the power to perform any act or duty that his principal has; such being the case and the law, there was no trespass shown, and no trespass could be shown. If the facts prove or tend to prove any crime, they tend to prove the crime of embezzlement or the crime defined in section 1957 of Oregon Laws with reference to public officers, and for that reason there is a fatal variance and an entirely independent offense, if any at all, proven."

The crime of embezzlement did not exist at common law. It is essentially a statutory offense. 20 C.J. 407, 410. Embezzlement is a form of larceny. State v. Browning, 47 Or. 470, 82 P. 955. But under the statute, it is a separate and distinct offense. Larceny involves the idea of an unlawful acquisition, whereas embezzlement is a fraudulent conversion to his own use of personal property after its possession has been lawfully acquired by the embezzler. See sections 1947, 1948, 1955, Oregon Laws; Rapalje on Larceny and Kindred Offenses, § 372; 2 Wharton's Criminal Law (11th Ed.) § 1256; 2 Bishop on Criminal Law (9th Ed.) §§ 318-383. The following excerpt marks the distinction between larceny and embezzlement:

"A domestic servant, farm laborer, clerk in a store or office, teller, bookkeeper, or clerk in a bank, workman in a factory, brakeman on a railroad train, foreman of a railroad warehouse or a clerk therein, hostler, drayman, stevedore, weigher, or person employed in any other capacity as the servant of another who feloniously takes and carries away the money or goods of his master, to which by reason of his employment he has access, is

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