State v. Cooke

• Decision Date: 02 July 1929
• Citation: 278 P. 936,130 Or. 552
• Parties: STATE v. COOKE ET AL.
• Court: Oregon Supreme Court

278 P. 936

130 Or. 552

STATE v. COOKE ET AL.

Supreme Court of Oregon

July 2, 1929

In Bank.

Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

James P. Cooke, indicted with others, was convicted of embezzlement, and he appeals. Affirmed.

Defendants were indicted by the grand jury of Multnomah county, charged with embezzlement. Defendant James P. Cooke, demanded a separate trial, which was granted. He was convicted of having embezzled the sum of $1,881.06 belonging to Arthur M. Welch and sentenced to serve a term of seven years in the state penitentiary. From that judgment he appeals to this court. Appellant assigns 31 alleged errors. The first assignment of error is the court's denial of defendant's motion for a directed verdict; the second, denying defendant's motion for a new trial; third assignment of error is based on the court refusing to give instructions Nos. 6, 9, and 10, as requested by the defendant, and the fourth is based on the court's giving of an instruction; the fifth to twenty-third assignments of error, inclusive, are based on the admission of similar transactions between others and defendant, which were offered and admitted for the purpose of establishing a criminal intent on the part of defendant. All the said similar transactions occurred about the same time as the transactions charged against defendant and upon which he was convicted. The twenty-fourth is based on the court's order denying the motion of defendant to compel the state to elect upon which of several transactions it would lie. This motion was made at the beginning of the trial, and later after the state had introduced its testimony. The twenty-fifth assignment of error is based on denial of a similar motion a little later in the proceedings. The twenty-sixth to thirty-first assignments of error are based upon the court's order admitting in evidence as exhibits certain accounts as shown by the ledger and other books kept by the Overbeck & Cooke Company, a corporation.

Defendant Cooke was president of said corporation, which was an Oregon corporation having its general place of business in Portland and did a general brokerage business. This corporation had a capital stock of $10,000 and went into voluntary bankruptcy in the early part of February, 1928. In addition to being president, defendant Cooke was active in the management owned 60 per cent. of the shares of stock, and had been with the corporation since its organization in 1907. One of the employees, designated in the evidence as a "slate man" or margin clerk, testified that he followed rigidly the instructions of defendant Cooke in conducting the business of the corporation. Appellant in his brief considers the first and second assignments together; the third and fourth assignments together; the fifth to the twenty-third assignments are treated together; the twenty-fourth and twenty-fifth assignments are likewise treated together, and the remaining assignments together. The state answered the argument of appellant in the same order. The opinion will follow the order in which appellant has presented his argument.

John Collier, E. F. Bernard, and J. P. Winter, all of Portland (Collier, Collier & Bernard and Winter & Maguire, all of Portland, on the brief), for appellant.

Geo. G Mowry and Leon Behrman, both of Portland (Stanley Myers Dist. Atty., of Portland, on the brief), for the State.

COSHOW J. (after stating the facts as above).

"Embezzlement may be defined broadly as the fraudulent appropriation of another's property by a person to whom it has been intrusted or into whose hands it has lawfully come." 20 C.J. 407. The statute for the crime of embezzlement in this state is defined in Or. L. § 1955. Property which may be embezzled in this state must be subject to larceny. The defendant is charged by indictment of embezzling "divers gold and silver coins, paper currency, bank bills and currency bills, lawful money of the United States of America, checks, notes, drafts, bonds, certificates of deposit, bills of exchange, and other valuable securities." The first and second assignment of error are based upon the contention of appellant, Cooke, that there is a fatal variance between the indictment and the proof.

The evidence shows that Welch took to the office of the Overbeck & Cooke Company a certificate of stock for 30 shares of California Petroleum common stock, and another certificate of stock for 10 shares of B. F. Goodrich preferred stock, with directions to sell at the market and send to him the check of said corporation for the amount due him after deducting charges and commissions. The evidence shows that this amount was $1,881.06 as charged in the indictment. Appellant, Cooke, argues that there is no evidence tending to prove that any of the various kinds of personal property mentioned in the indictment belonging to said Welch ever came into the possession of defendant Cooke, or the corporation the Overbeck & Cooke Company. Appellant very thoroughly analyzes the indictment and the evidence adduced to support it, and especially stresses the necessity of proving that the property belonging to Welch and alleged to have been embezzled by defendant Cooke was lawful money of the United States.

Appellant also argues that there was no evidence of any checks, notes, drafts, bonds, certificates of deposit, bills of exchange, or other valuable securities belonging to Welch ever having come into the possession of defendant Cooke. It follows from that argument that defendant could not have embezzled any of the property mentioned in the indictment. For that reason appellant, Cooke, argues that his motion for a directed verdict should have been sustained, and, not having been allowed, his motion for a new trial should have been granted. There is respectable authority sustaining the contention of appellant, Cooke, to the effect that a charge of stealing lawful money of the United States can be proved only by showing larceny of legal tender of the United States. State v. Neilon, 43 Or. 168, 174 et seq., 73 P. 321, and authorities there cited; Perry v. State, 42 Tex. Cr. R. 540, 61 S.W. 400; Alderman v. State of Florida, 88 Fla. 375, 378, 102 So. 737.

Appellant contends that the words "divers gold and silver coins, paper currency, bank bills, and currency bills," followed as they are by "lawful money of the United States of America," are thereby confined to mean legal tender of the United States. Silver coins are legal tender to a very limited extent. Bank bills are not legal tender at all. Some currency bills, the last of these various kinds of money mentioned in the indictment, are legal tender, and others are not. 31 USCA p. 221, c. 9, § 451 et seq. It is not necessary that the indictment be construed as though "lawful money of the United States of America" qualified the preceding words, describing the kinds of money mentioned in the indictment. The indictment can well be construed to the effect that "lawful money of the United States of America" is another kind of money which defendants are charged with having embezzled. Some silver coins, some currency bills, are lawful money of the United States of America. Other silver coins, paper currency, and currency bills are not lawful money of the United States of America. Bank bills are not legal tender. Therefore it is not proper to hold that lawful money of the United States of America is a qualification of the words "bank bills." But it does not necessarily follow, even if the construction be placed on the terms "lawful money of the United States of America" contended for by appellant, that there was a variance between the allegations and the proof. Following "lawful money of the United States of America" are descriptions of other personal property alleged to have been embezzled by defendant Cooke. If the state proved that defendant Cooke embezzled checks, notes, drafts, bonds, certificates of deposit, bills of exchange, or other valuable securities, the conviction must be sustained.

The transaction disclosed by the evidence is to this effect: The prosecuting witness, Arthur M. Welch, delivered to the corporation the Overbeck & Cooke Company the two certificates of stock mentioned above, with directions to sell the same at market and send to him the check for the amount due him after completion of the sale. The Overbeck & Cooke Company was not a member of the New York Stock Exchange, the transfer market for the sale of stocks. That corporation operated through the partnership of Logan & Bryan, who were members. The partnership had offices in the same building with the corporation the Overbeck & Cooke Company. The corporation delivered the certificates of stock to Logan & Bryan, with instruction to sell at the market.

The partnership immediately wired their New York office to make the sale. The sale was made and reported. On the same day that the telegram was sent directing the sale of the stock, the two certificates of stock, with other certificates of stock belonging to other customers of the Overbeck & Cooke Company, were attached to a draft for $14,000, and forwarded by mail to Logan & Bryan at New York, through United States National Bank of Portland and its New York correspondent. Upon delivery of the certificates of stock, the draft was honored and the sale completed. When the draft was drawn in Portland through the United States National Bank, the Overbeck & Cooke Company was given credit on its books for the $14,000. That amount was about 96 per cent. of the value of the certificates of stock attached to the draft. Later the additional amount for which the several certificates of stock attached to the said draft were sold was also credited to the Overbeck & Cooke Company by Logan & Bryan.

The...