State v. Harris

CourtSupreme Court of Connecticut
Writing for the CourtBefore BALDWIN; KING
Citation147 Conn. 589,83 A.L.R.2d 783,164 A.2d 399
Parties, 83 A.L.R.2d 783 STATE of Connecticut v. Nelson HARRIS. Supreme Court of Errors of Connecticut
Decision Date06 July 1960

Page 399

164 A.2d 399
147 Conn. 589, 83 A.L.R.2d 783
STATE of Connecticut
v.
Nelson HARRIS.
Supreme Court of Errors of Connecticut.
July 6, 1960.

[147 Conn. 591]

Page 400

William L. Hadden, Louis Evans, New Haven, and Joseph W. Bishop, Jr., New Haven, of the New York bar, for appellant (defendant).

Abraham S. Ullman, State's Atty., New Haven, with whom, on the brief, was Arthur T. Gorman, Asst. State's Atty., New Haven, for appellee (state).

Before [147 Conn. 589] BALDWIN, C. J., and KING, MURPHY, MELLITZ and SHEA, JJ.

[147 Conn. 591] KING, Associate Justice.

In a trial to the jury, the defendant was convicted of one count of theft and twenty-eight counts of embezzlement by agent. 1 The theft count and eight of the embezzlement counts involved funds of a Connecticut corporation known as Harris Developing Associates, Inc. Eighteen other counts of embezzlement involved funds of a Connecticut corporation known as Woodbridge Manor, Inc. The remaining two counts of embezzlement involved funds of two individuals, William Dukeshire and Mortimer Wallerstein; no assignment of error as to these two counts is pursued in the brief, and we therefore do not discuss them. Martino v. Grace-New Haven Community Hospital, 146 Conn. 735, 736, 148 A.2d 259. The defendant was the record owner of all but two shares of the capital stock of each corporation. Of those two shares, one was owned of record by the the defendant's wife and the other by a daughter. The officers and directors of each corporation were the defendant, his wife and a daughter.

[147 Conn. 592] One of the claims of proof of the defendant was that from the incorporation of the two corporations through August 26, 1956, that is, the period within which the embezzlements were claimed to have occurred, he owned beneficially all of the stock of each corporation. He assigns error in the failure of the court to give this request to charge: 'If you find that [the defendant] was the owner of the beneficial interest in one hundred per cent of the stock of Harris Developing Associates, Inc., and Woodbridge Manor, Inc., then I charge you that his handling of the funds of either or both of these corporations cannot legally be held to be embezzlement. A person connot embezzle from a corporation where he is the owner of one hundred per cent of the capital stock.' The court at several points in its charge

Page 401

reiterated the essential elements of the crime of embezzlement, including the requirement, here, that the funds involved belong to the corporations the defendant was charged with embezzling from. See State v. Parker, 112 Conn. 39, 52, 151 A. 325; State v. Serkau, 128 Conn. 153, 158, 20 A.2d 725. The court also charged fully as to the necessity of there being an intent to defraud another of his property. If, because of the defendant's ownership of the stock in either corporation or for any other reason, and however mistakenly, he honestly believed that he had a right to take the funds of the corporation, the jury could not, in view of the absence of an intent to defraud as required under our statute, have convicted him under the charge as given. State v. Lanyon, 83 Conn. 449, 454, 76 A. 1095; State v. Henderson, 102 Conn. 658, 660, 129 A. 724; State v. Parker, supra; State v. Schofield, 114 Conn. 456, 458, 159 A. 285.

The defendant, however, claims that had the requested instruction been given, the jury, if they believed[147 Conn. 593] that he owned all of the stock of either corporation, actually or beneficially, would have been obliged to acquit him of embezzlement from that corporation even though they found that the state had proven that he had misappropriated the funds of the corporation with intent to defraud it. This in effect amounts to a claim that it is impossible for a person to embezzle from a corporation the stock in which is wholly owned by him because, despite the corporate entity, title to the corporate assets is in him. See State v. Serkau, supra; also cases such as State v. Wilson, 30 Conn. 500, 505. The crime of embezzlement by agent did not exist at common law and is purely statutory. State v. Parker, supra, 112 Conn. 45, 151 A. 328. Section 53-355 is broad. It refers to 'any private corporation' and to misappropriation 'in any way.' It contains no exception based on an accused's ownership, beneficial or outright, of any or all of the stock in the corporation. The defendant, in making his claim, is forced to, and does, ignore or by-pass the corporate entity. This he cannot do, in view of § 53-355. The property of the corporation was not his, regardless of who owned the corporate stock. See Taylor v. Commonwealth, 119 Ky. 731, 745, 75 S.W. 244. The corporation was an entity, separate and apart from its stockholders. Humphrey v. Abgraves, 145 Conn. 350, 354, 143 A.2d 432; Frank Amodio Moving & Storage Co. v. Connelly, 144 Conn. 569, 572, 135 A.2d 737; Kulukundis v. Dean Stares Holding Co., 132 Conn. 685, 689, 47 A.2d 183; Swiss Cleaners, Inc. v. Danaher, 129 Conn. 338, 345, 27 A.2d 806; Hoffman Wall Paper Co. v. City of Hartford, 114 Conn. 531, 534, 159 A. 346.

The defendant claims that he could have procured from the two other directors and stockholders, who were merely dummies, a vote giving himself all or [147 Conn. 594] any part of the funds of the corporation and that he would then not have been subject to conviction for embezzlement, at least in the absence of proof of insolvency on the part of the corporation. From that premise he argues that it is an absurdity to hold that his failure to follow this formality could change the essential character of his action. The defendant's argument falls because of the invalidity of his premise. If in fact the defendant, with intent to defraud the corporation, misappropriated its funds 'in any way,' he would be guilty of embezzlement under our statute. This would be true even though he had taken the precaution of procuring a vote of the board of directors or of the stockholders, or of both, purporting to authorize the misappropriation. Had the defendant followed such a course, it might, as a practical matter, have been very difficult for the state to prove the requisite criminal intent to defraud. But if the state had succeeded in so doing, the vote of the two directors and stockholders claimed by the defendant to be dummies, and to have merely a naked legal title to the corporate stock which stood in their names, would not render impossible the conviction of the defendant for embezzlement. He stresses

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the effect of the existence of § 33-27 of the General Statutes (repealed by Public Acts 1959, No. 618, § 137, effective Jan. 1, 1961), which prescribes a criminal penalty in the case of any director who votes to 'pay any dividend or make any...

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55 practice notes
  • State v. O'Neill
    • United States
    • Supreme Court of Connecticut
    • 24 Junio 1986
    ...evidence of guilt of other crimes is inadmissible to prove that a defendant is guilty of the crime charged against him. State v. Harris, 147 Conn. 589, 599, 164 A.2d 399 [1960].' State v. Fredericks, 149 Conn. 121, 124, 176 A.2d 581 (1961); McCormick, Evidence (2d Ed.1972) § 190; 1 Wharton,......
  • People v. Smith
    • United States
    • California Court of Appeals
    • 17 Mayo 1984
    ...person, this does not necessarily destroy its separate existence." A similar argument was more resoundingly rejected in Harris, supra, 147 Conn. 589, 164 A.2d 399 (which provoked the annotation "Criminal responsibility for embezzlement from corporation by stockholder owning entire beneficia......
  • State v. Doehrer
    • United States
    • Supreme Court of Connecticut
    • 29 Julio 1986
    ...State v. Lizzi, 199 Conn. 462, 468-69, 508 A.2d 16 (1986); State v. Hauck, 172 Conn. 140, 144, 374 A.2d 150 (1976); State v. Harris, 147 Conn. 589, 599-600, 164 A.2d 399 (1960); State v. Barnes, 132 Conn. 370, 372-73, 44 A.2d 708 (1945); see 2 Wigmore, Evidence (3d Ed.) § 304. We have recen......
  • State v. Baldwin, No. 14496
    • United States
    • Supreme Court of Connecticut
    • 12 Enero 1993
    ...defendant is guilty of the crimes with which he is charged. State v. Holliday, 159 Conn. 169, 172, 268 A.2d 368 (1970); State v. Harris, 147 Conn. 589, 599, 164 A.2d 399 (1960). Such evidence is admissible for other purposes, however, such as when it is particularly probative in showing suc......
  • Request a trial to view additional results
55 cases
  • State v. O'Neill
    • United States
    • Supreme Court of Connecticut
    • 24 Junio 1986
    ...evidence of guilt of other crimes is inadmissible to prove that a defendant is guilty of the crime charged against him. State v. Harris, 147 Conn. 589, 599, 164 A.2d 399 [1960].' State v. Fredericks, 149 Conn. 121, 124, 176 A.2d 581 (1961); McCormick, Evidence (2d Ed.1972) § 190; 1 Wharton,......
  • People v. Smith
    • United States
    • California Court of Appeals
    • 17 Mayo 1984
    ...person, this does not necessarily destroy its separate existence." A similar argument was more resoundingly rejected in Harris, supra, 147 Conn. 589, 164 A.2d 399 (which provoked the annotation "Criminal responsibility for embezzlement from corporation by stockholder owning entire beneficia......
  • State v. Doehrer
    • United States
    • Supreme Court of Connecticut
    • 29 Julio 1986
    ...State v. Lizzi, 199 Conn. 462, 468-69, 508 A.2d 16 (1986); State v. Hauck, 172 Conn. 140, 144, 374 A.2d 150 (1976); State v. Harris, 147 Conn. 589, 599-600, 164 A.2d 399 (1960); State v. Barnes, 132 Conn. 370, 372-73, 44 A.2d 708 (1945); see 2 Wigmore, Evidence (3d Ed.) § 304. We have recen......
  • State v. Baldwin, No. 14496
    • United States
    • Supreme Court of Connecticut
    • 12 Enero 1993
    ...defendant is guilty of the crimes with which he is charged. State v. Holliday, 159 Conn. 169, 172, 268 A.2d 368 (1970); State v. Harris, 147 Conn. 589, 599, 164 A.2d 399 (1960). Such evidence is admissible for other purposes, however, such as when it is particularly probative in showing suc......
  • Request a trial to view additional results

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