State v. John J. Cocklin

• Decision Date: 14 October 1938
• Parties: STATE v. JOHN J. COCKLIN
• Court: Vermont Supreme Court

194 A. 378

109 Vt. 207

STATE v. JOHN J. COCKLIN

Supreme Court of Vermont

October 14, 1938

May Term, 1937.

Embezzlement by Bank Cashier---Ruling on Admissibility Covering Evidence Previously Received---Admissibility of Involuntary Confessions and of Evidence of Facts Disclosed Thereby---Of Parts of Involuntary Confession Relating to Such Facts---Information Given by Respondent Relating to Such Facts Held Admissible---Statements Respecting Such Facts and Other Statements Treated by Respondent as Standing Alike---Objectionable Parts of Evidence Not Called to Court's Attention---Searching Record for Error---P. L. 8451, Necessity of Alleging Connection with Bank under Embezzlement Statute---Modes of Questioning Sufficiency of Information---Filing Motion to Quash and Demurrer out of Time---Exception to Charge on Ground Information Defective---Fraudulent Conversion as Element of Offense under P. L. 8451, Embezzlement from Bank---Exception to Charge on Fraudulent Conversion---Motion to Set Aside Verdict for Defective Information.

1. Exception to failure of court to determine question affecting admissibility of evidence when first raised was without merit where later ruling of court on question expressly applied to evidence previously received.

2. While confessions which are not voluntary, but are made either under fear of punishment if not made, or in hope of escaping punishment if made, are not, generally speaking received in evidence, where an involuntary confession results in discovery of incriminatory facts, evidence of such facts is admissible.

3. Where involuntary confession results in discovery of incriminatory facts, only that part of confession that relates to corroborating facts is admissible, since the reason for excluding such confessions is likelihood of their being fabricated in hope of escaping punishment or obtaining leniency.

4. In prosecution for embezzlement from bank, where respondent claimed that information given by him respecting his operations was induced by intimidation and promises, so much of such information as related to material facts disclosed by subsequent investigation of bank's affairs was admissible.

5. In such prosecution, where some of testimony by one witness as to information given by respondent in circumstances which he claimed constituted involuntary confession might not have been admissible as relating to corroborating facts discovered as result of such information under literal construction of rule, but where respondent treated what he said respecting all items as standing alike, exception to admission of evidence of this witness was overruled, since some of his evidence respecting information given by respondent was clearly admissible as relating to such corroborating facts.

6. In such prosecution, where evidence of two witnesses as to information furnished by respondent regarding his operations was received over respondent's objection and exception on ground that information was furnished by him under circumstances constituting involuntary confession, and where testimony of such witnesses covered a wide field, some of it being undoubtedly admissible and most of it probably harmless, and objectionable portions were not called to attention of Supreme Court, exception was overruled.

7. Supreme Court will not search record for error, especially when verdict is supported by competent undisputed evidence of unquestioned verity.

8. Information relied on as charging offense under P. L. 8451 relating to embezzlement by officer, agent or servant of bank was fatally defective in failing to allege that respondent was cashier or other officer, agent or servant of bank when he committed alleged acts and that he committed them as such cashier, officer, agent or servant.

9. Where information was defective but proof clearly tended to show all facts necessary to constitute offense under statute relied on, question as to defect in information could be raised only by motion to quash, demurrer or motion in arrest of judgment, and motion for directed verdict on ground of defect in information was properly denied.

10. In criminal prosecution, where State on respondent's motion made at close of State's evidence elected to seek conviction under P. L. 8451 relating to embezzlement by officer, agent or servant of bank, and information was insufficient to charge offense under that statute, court had authority to permit respondent to file either motion to quash or demurrer at that time, though time for filing such pleadings, generally speaking, had then gone by.

11. In criminal prosecution, where court read to jury both P. L 8440 relating to larceny and 8451 relating to embezzlement from bank, told them it understood information was brought more specifically under 8451, and later that charge made by State concerned only that section, and respondent excepted on ground that information did not charge offense under 8451 exception held without merit in view of theory on which case was tried after State elected to seek conviction under 8451.

12. Fraudulent conversion is essential element of offense defined by P. L. 8451, relating to embezzlement by officer, agent or servant of bank.

13. In criminal prosecution, where information charged that respondent, a bank cashier, "did steal, take, carry away and fraudulently convert to his own use" funds of bank and State elected at close of State's evidence to seek conviction under P. L. 8451 relating to embezzlement by officer, agent or servant of bank rather than under larceny statute, charge of court that fraudulent conversion by respondent of funds or property of bank was essential element of offense charged and explaining what constituted such conversion, held proper as against exception on ground that it was error to charge concerning fraudulent conversion because allegation in information with respect thereto was surplusage.

14. In criminal prosecution, where State elected on motion made by respondent at close of State's evidence to seek conviction under P. L. 8451 relating to embezzlement by officer, agent or servant of bank, and where, though information was defective, proof was sufficient to show offense under that statute and court's charge permitted conviction thereunder, exception to denial of respondent's motion to set aside verdict on ground that he was informed against and stood trial for larceny, held without merit.

INFORMATION charging felonious taking and fraudulent conversion of funds of bank. Plea, not guilty. Trial by jury at the September Term, 1936, Rutland County, Buttles, J., presiding. Verdict of guilty, and judgment and sentence thereon. The respondent excepted. The opinion states the case.

No reversible error appears. Exceptions overruled.

Ernest W. Gibson, Jr., Frank E. Barber and Peter A. Bove for the respondent.

A. J. Spero, State's attorney, for the State.

Present: POWERS, C. J., SLACK, MOULTON and SHERBURNE, JJ., and SHIELDS, Supr. J.

OPINION

SLACK

The respondent stands convicted of seventy-one violations of P. L. 8451, which reads as follows:

"A cashier or other officer, agent or servant of an incorporated bank who embezzles or fraudulently converts to his own use bullion, money, notes, bills, obligations or securities or other effects or property belonging to and in the possession of such bank or belonging to any person and deposited therein, shall be guilty of larceny and shall be imprisoned in the state prison not more than ten years or fined not more than one thousand dollars."

He briefs exceptions to the admission of evidence, the overruling of a motion for a directed verdict, the charge of the court and the denial of a motion to set aside the verdict.

For several years prior to June, 1932, he was employed as teller and bookkeeper by the Marble Savings Bank of Rutland. The evidence tended to show that while so employed he, at different times, took and fraudulently converted to his own use money of such bank amounting in the aggregate to approximately two hundred and fifty thousand dollars.

The first witness called by the State was one Watkins, who testified that he was connected with the office of the commissioner of banking and insurance, that he began an examination of the Marble Savings Bank December 30, 1935, and early in January found certain "charge-offs," as he termed them, on the general ledger, the surplus account of the bank, which he reported to one Carpenter, the then commissioner of banking and insurance; that further examination of such bank was suspended until May 7, 1936, when it was resumed by order of such commissioner.

The respondent objected to all evidence of the witness respecting any examination made by him subsequent to the latter date on the ground that previous to that time the commissioner and George Jones, who respondent claimed represented the attorney general, asked him to aid in making such examination and promised him that if he would do so he would be protected and not brought to trial. The objection was overruled subject to his exception.

He then moved that the court determine the question of his claimed immunity, and offered to prove that the evidence got together by Watkins was with his aid and cooperation induced by the promises of the commissioner and Jones as above stated, and that at the time they were made Jones told him that he was ready to issue a warrant for his arrest unless he agreed to aid in such investigation and would also withdraw as candidate for the office of city treasurer in the coming election. This motion was then denied subject to respondent's exception; but before the direct examination of the witness was concluded, it was granted, and the court heard all evidence offered relating to the claimed immunity and intimidation. The...