State v. Crescenzo
| Decision Date | 03 February 1975 |
| Docket Number | No. 73-286-C,73-286-C |
| Parties | STATE v. Grace C. CRESCENZO. A. |
| Court | Rhode Island Supreme Court |
In November 1968, the Providence County Grand Jury returned an indictment that charged the defendant with embezzling, during an 18-month period, $35,000 of funds belonging to her employer, a Providence law firm. Four years later, in December 1972, a Superior Court jury, after listening to some 8 days of testimony, returned a guilty verdict. Subsequently, the trial justice denied the defendant's motion for a new trial and imposed a 2-year sentence which was to be served at the Women's Reformatory. Before us she has, through her appellate counsel, raised a variety of issues, some of which relate to the sufficiency of the indictment, the alleged disappearance and reappearance of a juror, the excuse of an apparently indifferent juror, various evidentiary rulings and jury instructions given by the trial justice, and his imposition of a 2-year prison sentence on a defendant who had no prior criminal record.
The record before us gives one an intimate view of the operations of an active law firm whose specialty is trial work and for which defendant for many years had performed a number of different duties while she acted as a combination legal secretary, office manager, bookkeeper, and 'girl Friday.' It can be said without fear of contradiction that when the attorneys were engaged in court, defendant kept things moving in the office. One of the firm's partners who testified told the jury that defendant 'handled the finances' and 'paid the bills.' A power of attorney that was on file with the state's largest bank gave defendant full authority to draw and issue checks, to endorse, and to cash or deposit checks which were made payable to the firm. The firm, which prior to and during the time referred to in the indictment was located in a downtown office building in Providence that also housed the main offices of the bank, maintained at this bank two checking accounts which for the purposes of this opinion we will refer to as a 'partnership account' and a 'clients' account.'
The office routine required that all incoming checks be routed to defendant's desk. The checks were of two categories. Some checks were made payable to the joint order of the client and the firm while other checks were made payable to the sole order of the firm. Before proceeding further, we should point out that relevant papers of any new case coming to the firm were placed in a manila file and the file given a number. Various office disbursements, such as filing or sheriffs' fees, were to be noted on the interior side of the file. When a joint order check in payment of a claim or in satisfaction of a judgment was received, defendant placed it in the clients' account checkbook. She would consult with the attorney who had handled the case. He would set the fee. The defendant was then able to draw the various authorized disbursements from the check. Some of the disbursements would relate to bills owed by the client for medical services rendered in his behalf. The client would be summoned to the office so that he could endorse the check. Once endorsed, the check was then ready for deposit in the clients' account.
Checks payable to the firm when received were placed in the partnership account checkbook. A so-called bill file was maintained where duplicates of the bills rendered clients were placed; when payment of the bill was made, the duplicate bill was receipted and attached to the file. The file was then closed.
Periodically, defendant would take the checks from the two books, endorse them in her representative capacity, and go downstairs to the bank where she made a deposit. She maintained a duplicate deposit slip system for each account. For each deposit she filed out two identical slips. On the front side of each slip she would list the date, the amount of cash deposited, the total amount of the checks being deposited, and the total amount of the deposit. On the reverse side of each slip she would list the amount of each check being deposited and the federal reserve number of the bank upon which the check was drawn. The teller would receipt both slips and return one of the slips to defendant. This slip served as the firm's record for the deposit.
It was uncontradicted that defendant's job was to deduct from the check bearing a client's name any fees and expenses due the firm by first drawing a check on the clients' account in the requisite amount to the firm, then endorsing it, and finally depositing the client account check in the partnership account. Checks made payable seolely to the firm were to be endorsed by defendant and were to be deposited in the partnership account. There was testimony that as a general rule defendant was not to cash any incoming checks that might be destined for either account. There were infrequent occasions when a client account check made payable to a client representing his net share of a settlement or a judgment would be cashed by defendant in the downstairs bank and the proceeds returned to the office and given to the waiting client. However, clients' account checks which were drawn to the order of the law firm were to be endorsed and then deposited in the partnership account. They were not to be cashed. When writing a check drawn on the clients' account, defendant would note on the checkbook stub the file number, the date of the deposit, and the amount of deposit that served as the source of the funds for the check.
The senior partner testified that the partnership account served as a source to pay all the office expenses including salaries due attorneys who worked for the firm as associate counsel, wages owed a clerical staff that consisted of as many as eight individuals, and the partners' profit. Each partner took a weekly or biweekly draw and at various times during the year, the partners would examine the partnership account and take from the outstanding balance their respective share of what they believed to be the profit, making sure to leave a balance in the account.
In late December 1967 or early January 1968, the partners first became concerned about their financial condition. A look at the balance in the partnership's checking account indicated that the year-end profit seemed a most inadequate result of a 12-month period filled with arduous efforts and a great deal of success. The partners also began to receive complaints from the firm's creditors about their bills not having been paid. In sensing that something had gone wrong, the partners first thought that the bookkeeping system was at fault.
They asked defendant to produce the checkbooks for each account. The defendant had made a practice of taking these records home to bring them up-to-date. The partnership account checkbook was produced within a few days, but the clients' account checkbook was not made available until some 5 weeks after the partners' initial request. The defendant attributed the delay in producing the clients' checkbook to a variety of reasons which the partners first felt were plausible, but as events unfolded, their implicit faith in defendant's integrity and ability began to dissipate as they came to realize that the trouble was not with the system but with the bookkeeper. Time marched on and finally the partners reached the point where, after making numerous efforts to piece together a true picture of their fiscal affairs, they felt the necessity of taking appropriate action. The defendant's power of attorney was revoked on Friday, March 29, 1968 and on April 1, 1968, her services with the firm were terminated. The partners then hired an accounting firm to review their records and present a report. An extensive audit was made. The audit report triggered an investigation by the detective division of the Providence Police Department. The embezzlement indictment followed.
The defendant's attack on the indictment apparently came by way of a motion to quash. We say 'apparently' because we have no transcript of the pretrial hearing which was held in May 1969. The motion sought dismissal on the grounds of the vagueness of the indictment. The defendant complianed that the indictment was so inartistically drawn that her federal fourteenth amendment rights to due process and her state constitutional right, art. I, § 10, to 'be informed of the nature and cause of the accusation' were violated.
This facet of defendant's appeal serves to remind us that the crime of embezzlement was unknown at common law. It is purely a creature of statute. Under most state statutes, an appropriation of money or the property of another, entrusted to the care of the accused, to his own use or to the use of any other person with a fraudulent intent is embezzlement. 3 Underhill, Criminal Evidence § 576 at 1418 (5th ed. 1957). The defendant is charged with violating the following pertinent portions of G.L. 1956 (1969 Reenactment) § 11-41-3:
'Every officer, agent, clerk, servant or other person to whom any money or other property shall be entrusted for any specific purpose * * * who shall embezzle of fraudulently convert to his own use * * * any money or other property which shall have come into his possession or shall be under his care or charge by virtue of such employment * * * shall be deemed guilty of larceny.'
Most, if not all, of defendant's vagueness contentions are specifically negated by the court in State v. Davis, 39 R.I. 276, 97 A. 818 (1916), where it was observed that one's constitutional right to be notified of the nature and cause of criminal accusation made against him does not require an indictment to be drawn with the precision...
To continue reading
Request your trial
-
State v. von Bulow
...of review is the sufficiency of the evidence upon which the state relies to establish a defendant's guilt. State v. Crescenzo, 114 R.I. 242, 257, 332 A.2d 421, 430 (1975).19 Medical opinions concerning the cause of Martha von Bulow's comas were elicited through the use of hypothetical quest......
-
State v. Louk
...ex rel. Drew v. Steinbock, 286 Or. 461, 595 P.2d 1234 (1979); State v. Benoit, 117 R.I. 69, 363 A.2d 207 (1976); State v. Crescenzo, 114 R.I. 242, 948, 332 A.2d 421, 428 (1975); State v. Kaseman, S.D., 273 N.W.2d 716, 725-26 (1978); State v. Bad Heart Bull, S.D., 257 N.W.2d 715, 722-23 (197......
-
State v. Thornton
...in the exercise of a trial justice's discretion." State v. Pacheco, 763 A.2d 971, 983 (R.I.2001) (quoting State v. Crescenzo, 114 R.I. 242, 263, 332 A.2d 421, 433 (1975)). In imposing sentence, a trial justice may consider numerous factors, including the severity of the crime; the defendant......
-
State v. Anthony, 78-360-C
...v. O'Brien, R.I., 412 A.2d 231, 233 (1980); State v. Eckhart, 117 R.I. 431, 436, 367 A.2d 1073, 1075 (1977); State v. Crescenzo, 114 R.I. 242, 252, 332 A.2d 421, 427 (1975). But the exercise of this discretion must not unduly restrict a defendant's right to cross-examine. It is the essence ......