State v. Hanley

• Citation: 39 A. 148,70 Conn. 265
• Court: Supreme Court of Connecticut
• Decision Date: 21 January 1898
• Parties: STATE v. HANLEY.

39 A. 148

70 Conn. 265

STATE

v. HANLEY.

Supreme Court of Errors of Connecticut.

Jan. 21, 1898.

Appeal from superior court, Litchfield county; Ralph Wheeler, Judge.

Information for embezzlement against Matthew C. Hanley. After verdict of guilty, defendant appealed, claiming errors in admission of evidence and in the charge of the court. Error.

The information upon which the defendant was convicted was as follows:

"And said attorney further informs and gives this honorable court to understand that on the 16th day of December, 1895, at Thomaston aforesaid, the said Matthew C. Hanley was the agent of said Henry A. Episcopo to collect and receive from the Abbott Brothers Company, of Waterbury, Connecticut, the sum of two hundred and thirty dollars, which sum was then due and belonging to said Henry A. Episcopo, and to pay from and out of said sum, so collected and received as agent aforesaid, the sum of one hundred and sixty-seven dollars, then and there agreed to be due said Hanley from said Episcopo, and to turn over and deliver to the said Henry A. Episcopo, and for and in his behalf, the balance of said sum, viz. sixty-three dollars; and as such agent the said Matthew C. Hanley did then and there receive and take into his possession said sum of sixty-three dollars, and then and there, with force and arms, did fraudulently, feloniously, with intent to defraud the said Henry A. Episcopo, take, purloin, secrete, and appropriate to his own use said sum of sixty-three dollars,—against the peace and contrary to the form of the statute in such case provided."

The finding of facts was as follows:

"On the trial of the above action the state claimed to have proved: (1) That for two or three years prior to December 6, 1895, the accused, Matthew C. Hanley, carried on the liquor business in Thomaston. (2) That during this time one Henry A. Episcopo was the interpreter and purchasing agent for certain Italian laborers then at work in said Thomaston, and as such purchased from the said Matthew C. Hanley intoxicating liquors and cigars. (3) That on December 6, 1895, said Episcopo was indebted for goods purchased from said Hanley in the sum of $167, as settled and agreed upon by said Episcopo and Hanley. (4) That on December 6, 1895, the Abbott Bros. Company, of Waterbury, Conn., were indebted to said Episcopo in the sum of $230. (5) That on December 6, 1895, the said Episcopo delivered to the said Hanley a written order on said Abbott Bros. Company for the sum of $230, which order had been duly accepted by said Abbott Bros. Company, to be paid on the 20th of December, 1895. The said Episcopo delivered said order to said Hanley upon agreement that the said Hanley should collect said sum of $230, when due and payable, and pay therefrom his own claim of $167 against said Episcopo, and should pay the remaining $63, belonging to said Episcopo, as follows, viz. the sum of $11 or $12 to one Smith, of Thomaston, and the sum of $15 to one Welton, of said Thomaston, to whom said Episcopo was severally indebted in said amounts, and to remit the balance of said sum of $63 to said Episcopo. (6) That said Hanley assigned, transferred, and delivered said order on the Abbott Bros. Company to one Robert Lowe, of Waterbury, to whom it was paid by said company. It appeared from the testimony of said Hanley (and no other evidence was offered on this subject) that said order was assigned and transferred to said Lowe by said Hanley to pay and satisfy a bill that Hanley owed said Lowe. (See pages 86 and 87 of evidence.) (7) In corroboration of the statement of said Episcopo, the state offered the testimony of one Smith, who was the same Smith alluded to in paragraph 5 as the creditor of Episcopo, that in the latter part of December, 1895, Hanley told said Smith that he would pay his bill against said Episcopo. To this evidence the said Hanley objected, on the ground that it was Immaterial, improper, irrelevant, and that the statement was made after the offense was claimed to have been committed. The court overruled the objection, admitted the testimony, and the said Hanley excepted. (8) The said Hanley admitted that he received said order on Abbott Bros. Company, but testified that on the 6th or 7th day of December, 1895, he paid to said Episcopo the sum of $65, as and for the difference between the amount of said order and Episcopo's indebtedness to him. (9) The said Hanley made the following requests to the court to charge the jury, to wit: First. That, even if it was proved that the defendant delivered the order on the Abbott Company to the attorney, Lowe, and Lowe collected the same, and appropriated the proceeds thereof to the payment of the defendant's debts with the consent of the defendant, this would not constitute embezzlement under our statute. Second. That, as part of this money for which this order was given belonged to the defendant, and as this part had not been separated at any time from the part which belonged to Episcopo, under such circumstances no part of the money in question was the property of another, within the meaning of our statute against embezzlement. The court did not charge the jury as requested, but did charge them as follows: 'And the attorney says that, from the evidence, the accused undoubtedly was the agent—special agent—of Episcopo for the collection of that money, and for the disposal of it in the manner agreed upon between them. And the state goes further, and says that, being thus the agent of his principal, he indorsed over this order on Abbott Bros, to a Mr. Lowe,—if that was the name,—to pay Hanley's indebtedness to Lowe, and that the full amount of money for which the order was drawn upon Abbott Bros, was paid by Abbott Bros, to Mr. Lowe. Now, I have to say to you that, if the accused did receive this order for the amount named, and if by their agreement he was to dispose of it as Mr. Episcopo says, and if, in the transaction of this business, instead of collecting the money and disposing of it as agreed, he indorsed that order over to his own creditor, and thus paid his own debts with the money, that would be such an appropriation as would be contemplated by this statute. If he thus appropriated, while agent, the money of his principal, with the intent to defraud that principal, then the full offense was committed. Of course, to be guilty in this transaction, you must find beyond a reasonable doubt that there was, not only an agency and the appropriation of the money, but that the accused intended at the time of the appropriation to defraud his principal; and these are the questions presented to you upon the evidence.' To the refusal to charge as requested, and to the charge...