State v. Johnston

• Decision Date: 13 June 1933
• Parties: STATE v. JOHNSTON.
• Court: Oregon Supreme Court

22 P.2d 879

143 Or. 395

STATE v. JOHNSTON.

Supreme Court of Oregon

June 13, 1933

En Banc.

Appeal from Circuit Court, Multnomah County; Hall S. Lusk, Judge.

Carl H Johnston was convicted of embezzlement, and he appeals.

Affirmed.

Robert G. Smith, of Portland, for appellant.

Barnett H. Goldstein, Asst. Atty. Gen. (Lotus L. Langley, Dist Atty., of Portland, on the brief), for the State.

CAMPBELL Justice.

Defendant and another were jointly indicted by the grand jury of Multnomah county for the crime of embezzlement. A separate trial was demanded by his codefendant. This defendant was tried alone, found guilty, and sentenced to a term in the state penitentiary. From such conviction and sentence, he appeals.

The indictment reads as follows:

"Carl H. Johnston and Peter Damskov are accused by the Grand Jury of the County of Multnomah and State of Oregon, by this indictment of the crime of unlawfully embezzling, funds and credits of a savings and loan association, committed as follows:

"That on, to-wit: the 19th day of October, A. D. 1931, and for some time continuously prior thereto, and for some time continuously thereafter, the Prudential Savings & Loan Association was a corporation duly created, organized and existing under and by virtue of the laws of the State of Oregon, and engaged in carrying on the business of a savings and loan association within the State of Oregon with its principal office and place of business within the County of Multnomah and State of Oregon.

"That on, to-wit: the said 19th day of October, A. D., 1931, the said Carl H. Johnston in the County of Multnomah and State of Oregon then and there being, and then and there an officer of the aforesaid Prudential Savings & Loan Association, to-wit: the President thereof, and by virtue of his employment as such officer as aforesaid, there did then and there come into his possession and be under his care and control and was so then and there in his possession and under his care and control, the moneys, funds, credit and property of, and then and there belonging to said Prudential Savings & Loan Association as aforesaid.

"That on, to-wit: the 19th day of October, A. D., 1931, the said Peter Damskov, in the County of Multnomah and State of Oregon then and there being, and then and there an agent of the said Prudential Savings & Loan Association, to-wit: the Property Manager thereof.

"That on, to-wit: the said 19th day of October, 1931, in the County of Multnomah and State of Oregon, the said Carl H. Johnston and Peter Damskov, as aforesaid, then and there being the president and Property Manager respectively of the Prudential Savings & Loan Association, as aforesaid, which said association was then and there doing and carrying on a savings and loan business in the county and state aforesaid, and the said Carl H. Johnston and Peter Damskov as such officer and agent, that is to say as such President and Property Manager respectively, then and there having the custody and care of the moneys, funds, credits and property of said association, did then and there, by virtue of their said employment as aforesaid, wrongfully, unlawfully, feloniously and willfully, with intent then and there on the part of them, *** to injure and defraud said association, embezzle and convert to the use benefit, gain and advantage of the said Carl H. Johnston and Peter Damskov, and each of them and of other persons whose names are to this grand jury unknown, certain moneys, funds, credits and property of the said association, to the amount and of the value of Five Thousand and Eight Hundred Fifty and No/100 Dollars ($5,850.00), from and out of the moneys, funds, credits and property of said association, by then and there paying and causing said sum to be paid out of such moneys, funds, credits and property of said association on a check in the sum of Five Thousand Eight Hundred Fifty and no/100 Dollars ($5,850.00), drawn upon the Bank of California, at Portland, Oregon, by the said Carl H. Johnston as President, and Lois Jenks as Secretary of said Prudential Savings & Loan Association, as aforesaid, and dated the 19th day of October, 1931, and made payable to one W. C. Becktell, which check was then and there by the said Carl H. Johnston and Peter Damskov caused to be cashed and paid out of such moneys, funds, credits and property of the said association, and the proceeds thereof, to-wit: the said sum of Five Thousand Eight Hundred Fifty and no/100 Dollars ($5,850.00) in money, the exact description thereof being to this grand jury unknown, delivered to the said Carl H. Johnston and Peter Damskov, and by them converted to the use and benefit of the said Carl H. Johnston and Peter Damskov, and each of them, and other persons whose names are to this grand jury unknown, the said Carl H. Johnston and Peter Damskov, and each of them, then and there well knowing that the said Prudential Savings & Loan Association had received no consideration whatsoever for the payment of said sum of Five Thousand Eight Hundred Fifty and no/100 Dollars ($5,850.00) as aforesaid, out of the moneys, funds, credits, and property of the said association, ***."

To this indictment, the defendant filed a demurrer and assigns as error the overruling thereof.

1. The defendant contends that the indictment is insufficient because it charges both larceny and embezzlement; that it fails to state facts sufficient to constitute a crime; and that it does not conform substantially to the requirements of chapter 7 of title 13 of the Oregon Code.

Section 14-325, Oregon Code 1930, provides: "If any officer *** of any *** corporation, shall embezzle or fraudulently convert to his own use, *** any money, property, or thing belonging wholly or in part to such *** corporation, which may be the subject of larceny, and which shall have come into his possession, or be under his care by virtue of such employment, such officer, *** shall be deemed guilty of larceny. ***"

The above statute defines the crime of "embezzlement" as a species of larceny. State v. Browning, 47 Or. 470, 82 P. 955. "Larceny" requires an unlawful acquisition, and the intent to permanently deprive the owner of his property, while "embezzlement" is a fraudulent conversion of the property, lawfully in the possession of defendant to his own use. The trespass or wrongful taking in larceny is not present in embezzlement, a breach of confidence being substituted therefor. State v. Browning, supra; State v. Coleman, 119 Or. 430, 249 P. 1049. There is no allegation of a felonious taking, or a fraudulent acquisition of possession of the property alleged to have been embezzled, in the indictment.

The indictment plainly, and with certainty, alleges that the defendant, in conjunction with another, by virtue of their fiduciary relationship with the aforesaid association, had control and care of certain moneys of the said association; that defendant by means of a check in the sum of $5,850, drawn on the Bank of California at Portland, Or., and paid by the funds of the said association, "wrongfully, unlawfully, feloniously and wilfully" with intent to defraud said association converted said money to his own use. The defendant, the court, and the jury were fully advised as to the nature of the crime charged and defendant would be protected, upon acquittal or conviction, from being tried a second time for the same offense. State v. Dormitzer, 123 Or. 165, 261 P. 426; State v. Cooke, 130 Or. 552, 278 P. 936.

2. The defendant contends that the court erred in admitting the testimony of W. C. Becktell as to statements made by the defendant Damskov, in the absence of his codefendant, Johnston.

The bill of exceptions is very meager. The court's certificate shows that it does not contain all the evidence. Questions regarding the admissibility of evidence will generally not be reviewed on appeal when all the evidence is not incorporated in the bill of exceptions.

"If the evidence could have upon any theory of the case been admissible, it was the duty of the defendant to have negatived that theory by proper statements in his bill of exceptions. If it was admissible as a link in a chain of such occurrences, it devolved upon him to show by the bill of exceptions that those necessary links were not supplied by other testimony. As we said in Pacific Laundry Co. v. Pacific Bridge Co., 69 Or. 306, 138 P. 221, and here repeat: 'A bill of exceptions must point out error *** and make it plain that under no combination of circumstances could the testimony have been admissible."' State v. McClard, 81 Or. 510, 160 P. 130, 132; State v. Louie Hing, 77 Or. 462, 151 P. 706.

The witness Becktell testified that defendant Damskov had handed him a check for $5,850 (State's Exhibit No. 6). Counsel for the state then asked the witness to relate what Damskov had said to him at that time. Counsel for defendant objected to this question on the grounds that such testimony was "hearsay, incompetent, irrelevant, and declarations of an accomplice."

It is therefore admitted by appellant and also well settled that the declarations of one of the conspirators which occurs before the actual commission of the alleged crime, and which tends to prove the guilt of that conspirator, is equally admissible in evidence against anyone of his confederates in a separate trial of the latter. Oregon Code 1930, § 9-226, subd. 6; State v. Ryan, 47 Or. 338, 82 P. 703, 1 L. R. A. (N. S.) 862; State v. Caseday, 58 Or. 429, 115 P. 287; State v. Boloff, 138 Or. 568, 4 P.2d 326, 7 P.2d 775.

In a well-reasoned case, Tuckerman v. United States (C. C A.) 291 F. 958, 970, the court said: "It is the general rule that where two or more persons are associated for the same illegal purpose, and even where the...