State v. Kulig

• Decision Date: 27 March 1974
• Docket Number: No. 73-540,73-540
• Parties: , 66 O.O.2d 351 The STATE of Ohio, Appellee, v. KULIG, Appellant.
• Court: Ohio Supreme Court

Page 157

37 Ohio St.2d 157

309 N.E.2d 897, 66 O.O.2d 351

The STATE of Ohio, Appellee, v. KULIG, Appellant.

No. 73-540.

Supreme Court of Ohio.

March 27, 1974.

Syllabus by the Court

Circumstantial evidence relied upon to prove an essential element of a crime must be irreconcilable with any reasonable theory of an accused's innocence in order to support a finding of guilt.

Appellant was convicted of embezzling personal property valued at $100 from an estate of which he was executor. A part of the estate consisted of sundry household items located in the decedent's house, including a number of radio and television sets. Decedent had directed in his will that no appraisement of his household goods be made, and bequeathed all such property to the Salvation Army.

In discharging his duties as executor of the estate, appellant had on several occasions gone into the decedent's house. On one such occasion, September 30, 1971, while accompanied by a representative of the Salvation Army, appellant called the Cleveland police department to report the theft of certain personal property which, on the previous day, he had noticed was missing from the house, and which he had seen there the last time he was in the house prior to discovering the theft. Appellant identified a Realtone 10-band solid state portable radio, black and silver trim, bearing model number 2930, and a Panasonic 11-inch black and white television set, as being among the stolen property. He testified that although there had been no inventory made of the household goods, he knew, from his earlier visits to the house, what had been there, and thus what was missing.

In the course of investigating the theft, the police queried residents of the decedent's neighborhood and learned that appellant had been seen on September 2 removing from the house a television set, a radio and a brown box. The police were also told that appellant had been seen at the house on several occasions between September 7 and September 30.

On October 4, a search warrant was obtained, pursuant to a hearing before a judge of the Court of Common Pleas, which authorized a search of appellant's office, auto and home for the property he had earlier reported stolen. Shortly thereafter, the warrant was served on him at his office. There is conflicting testimony concerning appellant's reply to a police officer, when asked whether he had any of the property contained in the warrant, but he turned over to the police a portable television set he had in his office and a short-wave radio from his home. Receipts signed by the officers serving the warrant and given to appellant, identified the seized items as a Sony television set and a Panasonic radio.

Appellant was indicted for embezzlement, and, upon trial, was found guilty. The prosecution had entered in evidence a Sony television set, which it claimed was in fact the television reportedly stolen, and a Realtone radio which matched the description of the radio appellant had also reported as stolen from the house. The prosecutor contended that these two items were the ones turned over to the police the previous October, and both bore the initials of a detective who was present when the warrant was served.

Appellant's contention throughout has been that he removed from the decedent's house on September 2, 1971, the Sony television set in question and a brown Panasonic radio for the purpose of cleaning and testing them to arrive at some estimate of their worth. He maintains that both items were rightfully in his possession as executor of the estate; that, in any event, neither had been included among the items he had reported stolen. Appellant contends further that, as the receipt given him by the police indicated, it was a Panasonic radio and not the Realtone entered as evidence by the prosecution which he turned over to the police at the time the search warrant was served.

Upon appeal to the Court of Appeals, appellant alleged that the trial court committed error by misinterpreting the law of embezzlement, by failing to give the jury a charge requested by appellant, and by failing to exclude a statement given by appellant prior to trial. The Court of Appeals affirmed the judgment, and the cause is now before this court pursuant to the allowance of a motion for leave to appeal.

John T. Corrigan, Pros. Atty., and Peter H. Hull, Cleveland, for appellee.

Gordon T. Canning, Jr., Cleveland, for appellant.

PAUL W. BROWN, Justice.

Appellant was tried and convicted of embezzling the property of an estate of which he was the executor. Although it is not ordinarily the function of this court to weigh evidence developed at trial, it may do so in order to determine whether that evidence is of sufficient probative force to support a finding of guilt beyond a reasonable doubt, which is required for conviction in a criminal case. State v. Murphy (1964), 176 Ohio St. 385, 199 N.E.2d 884; State v. Petro (1947), 148 Ohio St. 473, 76 N.E.2d 335; Atkins v. State (1926), 115 Ohio St. 542, 155 N.E. 189. An examination of the record in this case discloses a serious lack of evidence, direct or circumstantial, regarding the issue of appellant's intent to convert estate property to his own use. Intent is an essential element of the crime of embezzlement (see, generally, 26 American Jurisprudence 2d, 570. Embezzlement, Section 19), and this evidentiary flaw compels us to reverse the judgment of conviction.

As executor of the estate...