State v. Hanna

• Decision Date: 16 November 1960
• Citation: 224 Or. 588,356 P.2d 1046
• Parties: STATE of Oregon, Respondent, v. Tony T. HANNA, Appellant.
• Court: Oregon Supreme Court

Page 1046

356 P.2d 1046

224 Or. 588

STATE of Oregon, Respondent, v. Tony T. HANNA, Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted June 14, 1960.

Decided Nov. 16, 1960.

Dan M. Dibble, Portland, argued the cause and filed a brief for appellant.

Keith Burns, Deputy Dist. Atty., Portland, argued the cause for respondent. On the brief were Charles E. Raymond, Dist. Atty., Portland, and Oscar D. Howlett, Deputy Dist. Atty., Portland.

Before McALLISTER, C. J., and PERRY, SLOAN, O'CONNELL and MILLARD, JJ.

O'CONNELL, Justice.

This is an appeal from a judgment of conviction of the crime of embezzlement by bailee which is defined in ORS 165.010. On May 9, 1958 defendant purchased a television set from Holman's Furniture and Appliance Co. located in Portland. The sale price was $129.95. The set was sold under a conditional sales contract which provided that defendant was to pay $70 on June 1st and the balance of $59.95 on July 1st, title to remain in the seller until the entire purchase price was paid. The contract also provided that the purchaser was not to sell or dispose of the property until it was fully paid for.

On the same day that defendant purchased the set he took it to the Third Avenue Loan Company, where he surrendered possession to the loan company. The testimony is in conflict as to whether defendant pawned or sold the set.

The defendant presents several assignments of error, only one of which need be considered. The trial court instructed the jury that

'* * * a criminal intent, as that term is ordinarily used, is not required for the commission of the crime of larceny by bailee or purchaser. It is sufficient that the defendant intended to sell or to convert to his own use the property involved.'

This was an erroneous instruction. Criminal intent is necessary to make out the crime described in ORS 165.010 under which the defendant was convicted. The crime charged is embezzlement. The state must prove specific intent, i. e., the intent to deprive the owner of his property. As expressed by Perkins, Criminal Law, p. 817 (1957):

'* * * This intent, while perhaps not strictly an intent to steal, is an intent to deprive the owner of his property and is for practical purposes the counterpart of the animus furandi required for larceny. Hence the unauthorized retention of the property of another under a bona-fide claim of right is not embezzlement even if the error is one of law.'

He also states, at page 247:

'The general statutes on embezzlement, as interpreted, ordinarily include all the elements of larceny other than the trespassory taking of possession. Hence they include the animus furandi or intent to deprive the other of his property. A mere unauthorized use by a bailee or wilful delay in returning the property will not of itself constitute this offense. There must be an intent to deprive the other of his property entirely. In fact, in statutes having the rather common provision, 'whoever embezzles or fraudulently converts to his own use,' the 'or' clause is to be understood as explanatory rather than additional, because the word 'embezzle' means to convert fraudulently to one's own use.'

The state relies upon State of Oregon v. Cahill, 1956, 208 Or. 538, 560, 293 P.2d 169, 298 P.2d 214, certiorari denied, 1956, 352 U.S. 895, 77 S.Ct. 132, 1 L.Ed.2d 87, for the proposition that a criminal intent is not an essential element of the crime defined in ORS 165.010. In that case the crime charged was the conversion of public funds, the crime now defined in ORS 165.015. The crime of conversion of public funds, unlike the crime of embezzlement, has been generally regarded as not requiring proof of a specific intent to defraud. As explained in Perkins, Criminal Law, pp. 247-249 (1957), this offense is considered to be a special type of crime designed to hold public officers strictly accountable for the conversion of public funds, even though they may not embezzle or fraudulently convert the property. The Cahill case, which involved the conversion of public funds by a public officer, followed the general rule and held that criminal intent was not an essential element of the crime now defined in ORS 165.015. Unfortunately, the opinion also contains a dictum which is erroneous. It is stated that an intent to defraud is not necessary to make out the crime described in ORS 165.010 (embezzlement by bailee, etc.). For this conclusion the court relied principally upon State v. Stiles, 1916, 81 Or. 497, 160 P. 126; State v. Chapin, 1915, 74 Or. 346, 114 P. 1187, and State v. Ross, 1910, 55 Or. 450, 104 P. 596, 106 P. 1022, 42 L.R.A.,N.S., 601, appeal dismissed, Ross v. State of Oregon, 1913, 227 U.S. 150, 33 S.Ct. 220, 57 L.Ed. 458.

Other cases later cited as support for the same proposition all involved conversion of public funds. The error began with State v. Chapin, supra. There it was held that the intent to defraud was not a necessary element of the crime of embezzlement described in ORS 165.010. This conclusion was based upon the authority of State v. Ross, supra, and Purcelly v. State 1890, 29 Tex.App. 1, 13 S.W. 993. The Ross case was not in point because it involved the crime of converting public funds, which, as we have pointed out above, is a distinct offense which may not require proof of the intent to defraud. The Purcelly case was not authority for the proposition relied upon; it held that for the defendant to be liable for the crime of embezzlement, 'he must, without the consent of the owner, fraudulently convert the property to his own use.' 29 Tex.App. at page 4, 13 S.W. at page 994. We should not perpetuate the error made in these earlier cases. See also McNeff v. Heider, 1959, 216 Or. 583, 337 P.2d 819, 340 P.2d 180. To the extent that our previous cases hold that a criminal intent is not a necessary element of the crime of embezzlement by bailee as defined in ORS 165.010, they are overruled.

The position we now take can be justified on the following grounds. First, our interpretation of ORS 165.010 makes it consistent with ORS 165.005, which defines the closely related crime of embezzlement by an officer, agent, servant or fiduciary. Our cases establish that criminal intent is necessary to make out the crime defined in this latter statute. State v. Johnston, 1933, 143 Or. 395, 399, 402, 22 P.2d 879; State v. Coleman, 1926, 119 Or. 430, 435, 249 P. 1049; State v. Browning, 1905, 47 Or. 470, 472-473, 82 P. 955; State v. Marco, 1897, 32 Or. 175, 177, 50 P. 799. On principle there is no reason for making intent a necessary element of the crime under ORS 165.005 and dispensing with the requirement under ORS 165.010. In fact, there would be more justification for dispensing with the element of intent where the conversion is committed by one in a fiduciary capacity (ORS 165.005) than where the conversion is by a bailee, mortgagor or conditional vendee (ORS 165.010). That is, it would be logically defensible to hold a party who occupies a position of trust to a stricter measure of accountability.

Secondly, ORS 165.010 as construed by State v. Chapin, supra, would impose absolute criminal liability upon the converter. It is generally conceded that the imposition of strict liability in the criminal law is not desirable, at least when the offense is other than a mere 'regulatory crime.' And this is especially so when the penalty is imprisonment. Morissette v. United States, 1952, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288; Model Penal Code, § 2.05, comment (Tent. Draft No. 4, pp. 140-146 (1955); Hall, General Principles of Criminal Law, 304-5 (1947); Williams, Criminal Law §§ 70-76 (1953); Public Welfare Offenses, 33 Colum.L.Rev. 55 (1933); Sayre, Mens Rea, 45 Harv.L.Rev. 974 (1932); Hart, The Aims of Criminal Law, 23 Law & Contemporary Problems 401, 422-25 (1958); Perkins, The Civil Offense, 100 Pa.L.Rev. 832 (1952); Gausewitz, Reclassification of Certain Offenses as Civil Instead of Criminal, 12 Wis.L.Rev. 365 (1937). Cf., Wasserstrom, Strict Liability in the Criminal Law, 12 Stan.L.Rev. 731 (1960). Therefore, unless it clearly appears that the legislature intended to impose criminal liability for the acts described in ORS 165.010 without proof of intent to defraud, we should construe it to include the requirement of such intent and thus make the statute conform to a sound theory of criminal liability.

The absence of an express provision in the statute for the element of intent should not be regarded as evidence of a legislative purpose to dispense with it as an essential element. As Williams, Criminal Law § 76, p. 270 (1953) ably expresses it:

'Every criminal statute is expressed elliptically. It is not possible in drafting to state all the exceptions and qualifications that are intended. One does not, for instance, when creating a new offence, enact that persons under eight years of age cannot be convicted. Nor does not enact the defense of insanity or duress. The exemptions belong to the general part of the criminal law, which is implied into specific offences. * * * Now the law of mens rea belongs to the general part of the criminal law, and it is not reasonable to expect Parliament every time it creates a new crime to enact it or even to make reference to it.'

From this premise it seems reasonable to conclude, as does the reporter for the Model Penal Code, op. cit. supra, p. 140:

'* * * The liabilities involved are indefensible in principle, unless reduced to terms that insulate conviction from the type of moral condemnation that is and ought to be implicit when a sentence of imprisonment may be imposed. In the absence of minimal culpability, the law has neither a deterrent nor corrective nor an incapacitative function to perform.

'* * * Crime does and should mean condemnation and no court should have to pass that judgment unless it can declare that the defendant's act was wrong. This is too fundamental to be compromised. The law goes far enough if it permits...