State v. Fairburn, 9930
| Citation | 340 P.2d 157,135 Mont. 449 |
| Decision Date | 25 June 1959 |
| Docket Number | No. 9930,9930 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Lloyd H. FAIRBURN, Defendant and Appellant. |
| Court | Montana Supreme Court |
Ralph L. Herriott, Billings, for appellant.
Forrest H. Anderson, Atty. Gen., William F. Crowley, Asst. Atty. Gen., William F. Crowley, Asst. Atty. Gen., argued orally, for respondent.
This is an appeal from a judgment of conviction on a jury verdict. The appellant was convicted of grand larceny of property held by him as an agent under R.C.M.1947, Sec. 94-2701.
The charge arose out of appellant's appropriation to his personal use of $381.60 paid to him by the purchaser of a Comptometer computing machine. The appellant was an agent selling strictly on commission. According to the undisputed testimony of appellant's employer, appellant had authority only to accept orders from customers 'and to bring back written proof of those orders and whatever money might have been tendered with the original sale', the amount in this case being the stolen $381.60. The Comptometer computing machine belonged to the Comptometer Corporation. It was shipped from the Spokane branch to the Billings distributor and by him delivered to appellant for demonstration purposes, and sale. The purchaser paid by a check drawn to the order of 'General Business Machines' at appellant's request. The appellant neither reported the sale nor paid any of the sale proceeds over to the Comptometer Corporation's home office in Algonquin, Illinois, nor to the Comptometer Corporation branch office in Spokane, Washington, nor to the appellant's immediate employer, Steve Fowler, Comptometer distributor and resale agent in Billings, Montana. Until Fowler discovered the defalcation, the payee of the check drawn to 'General Business Machines' was never heard of by Fowler or anyone connected with the Comptometer Corporation home or branch office.
Fowler employed the appellant as a salesman on April 29, 1957. The appellant's duties were to sell office machines on a sixteen percent commission basis, the commissions on these machines to be payable after sales had been made and confirmed by the Spokane office. The particular adding machine sale involved in this case was to be so handled according to the State's case. Appellant's working arrangement and Fowler's ownership with the Comptometer Corporation in these sale proceeds in shown by this portion of Fowler's testimony:
'Q. When you say 'strict' commission, do you mean he [appellant Fairburn] was to be paid commission on sales and only when he made sales--is that right? A. We had that understanding. I was in no position to pay commissions in advance of any sale, but only after such time as the money had come into the office. * * *
'
The appellant's employment covered a period of about two months, ending with his arrest on July 5, 1957. During this time twelve office machines were delivered to the appellant in his capacity as agent. Four of the machines were eventually returned to Fowler. No payment was ever received by Fowler for any of the machines.
The record is replete with substantial uncontradicted testimony that, if believed, proved beyond a reasonable doubt the criminal nature of the defendant's act charged. Defendant's counsel brought out on cross-examination of Fowler that the defendant had been submitting fake purported sales, and that as a part of the same transaction involved in the charge the defendant had given a bad check for a massage unit to the company he sold the adding machine to. All of this evidence demonstrated the criminal intent of the defendant and the criminal nature of the act charged.
The defense was apparently based on showing an open appropriation under a good faith claim of title. The appellant presented evidence to the effect that Fowler was indebted to him for unpaid commissions, that he needed the money, and that he retained the money on that account. The evidence on this matter is in sharp conflict and the jury elected to believe the testimony of the State's witnesses.
The appellant makes three specifications of error. The first is to the effect that the information does not state facts sufficient to constitute a public offense. The second is made in connection with certain testimony offered by the defense but refused by the court. The third complains of the admission of evidence of transactions involving other machines and proceeds, which is claimed to be prejudicial to the defendant.
The information under which the appellant was convicted accused him of committing grand larceny 'in that * * * Fairburn * * * having in his possession, custody and control as the agent of one Steve Fowler * * * lawful money * * * in the sum of * * * ($381.60), then and there the property of the said Steve Fowler and the Comptometer Corporation of Spokane, Washington, did then and there wrongfully, unlawfully, and feloniously appropriate said money to his own use, with the intent then and there in him, the said Lloyd H. Fairburn, to deprive the true owners of the said property; contrary to the form * * *'.
Appellant's objections to the information are that the charge of grand larceny is laid in the generic terms of our larceny statute (R.C.M.1947, Sec. 94-2701) without particularity; that agency for one principal, the Comptometer Corporation, is neither alleged nor inferable from the information when read as a whole; and that the exact amount of money owing separately to Fowler and to the Comptometer Corporation is not alleged.
To buttress his contention that particulars are required in support of an information charging grand larceny in generic statutory terms, appellant relies on this court's opinion in State v. Hale, 129 Mont. 449, 291 P.2d 229. This was a prosecution under R.C.M.1947, Sec. 94-1805, for obtaining money by false pretenses, specifically on a 'false and fraudulent claim' relied on by a county in making payment to the county surveyor. State v. Hale, 126 Mont. 326, 328, 249 P.2d 495, 496.
On the second appeal in State v. Hale, supra, 129 Mont. 449, 291 P.2d 229, the majority held that while generally an information couched in the language of the controlling statute is good, not only the particulars in which the Hale claim was false and fraudulent but also the particular representations relied on by Missoula County for making the payment must be averred in the information. The information is set forth at 129 Mont. at pages 467-471, 291 P.2d at pages 238-240, and was ruled insufficient for the reasons stated above.
The Hale opinion recognizes a general rule of pleading opposed to defendant's position here. Specifically the Hale decision is off point in that it deals not with theft but with deceit, fraud and pretenses. Whereas larceny is a broad and comparatively simple problem based on commonlaw concepts of general application, fraud must be found in the particulars of the mode of the falsity and pretense. See opinion in State v. London, 131 Mont. 410, 428, 310 P.2d 571, citing State v. Hale, 129 Mont. 449, 291 P.2d 229; State v. MacLean, 129 Mont. 500, 291 P.2d 250, and State v. Duncan, 130 Mont. 562, 568, 305 P.2d 761. The London opinion says [131 Mont. 410, 310 P.2d 581]: 'It is the contention of the appellant that the * * * [Hale and MacLean cases] have changed the previously settled law of this state and that now an information for murder must comply with the rules laid down in these two cases, both of which had to do with the charge of fraud or false pretenses under our statutes.
'That such is not now the law must be apparent'. We now add that, by parity of reasoning, the rule of the Hale cases is equally not the law in prosecutions for larceny and other common-law crimes of long-established meaning where indictments and informations in statutory form meet the tests laid down below.
In further support of his position appellant also cites State v. Wolf, 56 Mont. 493, 185 P. 556, which is an appeal from a conviction for sedition. The Wolf case follows the general rule that an information framed in statutory terms must be sufficiently particularized to enable a defendant to prepare a defense. Beyond this the opinion is irrelevant. To provide adequate notice to the defendant, a charge of sedition or false pretenses must be particularized. Sedition is what was said, fraud is what was pretended and without being fully informed on these matters the defendant cannot know what he must defend against.
Appellant also cites State v. Mjelde, 29 Mont. 490, 75 P. 87, 88, a case involving grand larceny of money received in equal amounts on three separate bailments made simultaneously for an identical purpose. The separate amounts were each less than $50 but the total of all exceeded $50. Appellant contends that the rule of this case requires that the portions belonging to Fowler and the Comptometer Corporation be separately alleged.
But defendant overlooks the portion of that opinion (State v. Mjelde) which reads:
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