State v. Lewis

• Decision Date: 25 February 1976
• Docket Number: No. 12534,12534
• Citation: 169 Mont. 290,546 P.2d 518
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Frank D. LEWIS, Defendant and Appellant.
• Court: Montana Supreme Court

Page 518

546 P.2d 518

169 Mont. 290

The STATE of Montana, Plaintiff and Respondent, v. Frank D. LEWIS, Defendant and Appellant.

No. 12534.

Supreme Court of Montana.

Submitted Feb. 3, 1976.

Decided Feb. 25, 1976.

Knight, Dahood, Mackay & McLean, Wade J. Dahood, argued, Anaconda, for defendant and appellant.

Robert L. Woodahl, Atty. Gen., James F. Walsh, III, argued, Asst. Atty. Gen., Helena, James J. Masar, appeared, County Atty., Deer Lodge, for respondent.

HASWELL, Justice.

Defendant Lewis, formerly superintendent of schools, School District Number One at Deer Lodge, was convicted in a jury trial of three counts of embezzlement by a public officer. He was sentenced to one year in prison on each count, with the sentences suspended. Lewis appeals, challenging the sufficiency of the evidence to support the convictions, and charging the district court abused its discretion in refusing to grant defendant a change of place of trial.

Defendant was superintendent of schools in Deer Lodge from 1964 to April 1970. Soon after commencing his duties there, he assumed virtually complete control of the school district's activity fund, a function formerly handled by a school secretary. In December 1970, defendant was charged by Information in the district court of Powell County with thirty-two counts of embezzlement by a public officer, under section 94-1501, R.C.M.1947. The charges arose from certain checks written by defendant on this activity fund.

Prior to trial, defendant moved for a change of place of trial pursuant to section 95-1710, R.C.M.1947, alleging that he could not be tried by a fair and impartial jury in Powell County. The affidavit accompanying the motion stated that Lewis had improvidently pled guilty to criminal charges in another school district related case and the resulting publicity in Powell County had created a fixed opinion of defendant's guilt so that a fair and impartial jury could not be secured there. In addition, defendant and his counsel stated in their affidavit that due to the small population of Powell County, it would be almost impossible to secure twelve jurors who were not related to or acquainted with the large number of witnesses to be called by the prosecution. At the hearing on this motion, defendant produced a petition circulated in Powell County and signed by two hundred and one citizens which stated that in the opinion of the signatories, defendant could not receive a fair and impartial trial in Powell County.

The motion was taken under advisement while the voir dire examination of a number of prospective jurors was conducted. Thereafter defendant renewed his motion for change of place of trial and the district court denied it.

Following dismissal of many of the counts in the Information due to the statute of limitations, defendant was tried on seven counts of embezzlement by a public officer. He was convicted on three, relating to checks written on the school district activity fund: (1) a check for $311.85 to Northwest Airlines for personal business; (2) a check for $200 as a loan to a school employee; and (3) a check for $300 to the same employee as another loan. The district court, Hon. Nat Allen, district judge presiding, denied defendant's motions for judgment notwithstanding the verdict and for a new trial, and entered judgment on the verdict February 13, 1973.

Defendant raises three specific issues on appeal:

(1) Is the evidence sufficient to sustain a conviction for embezzlement by a public officer?

(2) Did defendant have the requisite intent to commit the crime of embezzlement by a public officer?

(3) Did the district court abuse its discretion when it refused to grant defendant a change of place of trial?

With respect to the first two issues, we note that defendant was charged under former section 94-1501, R.C.M.1947, which stated in pertinent part:

'Embezzlement by public officer. Every officer of this state, or of any county, city, town, or district of this state, and every other person charged with the receipt, safekeeping, transfer or disbursement of public moneys, who either--

'1. Without authority of law, appropriates the same, or any portion thereof, to his own use, or to the use of another; or

'2. Loans the same, or any portion thereof, except by deposits in the manner authorized by law, or having the possession or control of any public money, makes profit out of it, or uses the same for any purpose not authorized by law; or

'3. Fails to keep the same in his possession or under his control until disbursed or paid out by authority of law * * *.'

It is conceded that defendant wrote the checks in question on the activity fund. The evidence shows that defendant, entrusted with public moneys in the activity fund, appropriated, loaned and disbursed portions of those moneys without authority of law. Defendant's attempts to show reimbursement to the fund are to no avail, for the statute proscribes the punishable conduct without any reference to an intent to make restitution. The general rule is stated in 26 Am.Jur.2d Embezzlement § 20:

'It is well established that when one wrongfully and intentionally misappropriates the property of another lawfully in his possession to his own use, the offense of embezzlement is complete, so that the fact that he at the same time intends subsequently to return the property or to make restitution to its righful owner does not relieve his wrongful act of its criminal nature, excuse him, or make his offense any the less embezzlement. * * *'

Thus, the evidence was sufficient to support the conviction as a matter of law.

With legally sufficient evidence before it, the jury was the sole trier of fact. Thus it was within the singular province of the jury to determine the innocence or guilt of the defendant under the counts in the Information; State v. Gleim, 17 Mont. 17, 29, 41 P. 998. The jury may decide which witnesses it chooses to believe, after considering all of the evidence; State v. Pankow, 134 Mont. 519, 333 P.2d 1017; State v. Medicine Bull, Jr., 152 Mont. 34, 445 P.2d 916. If substantial evidence is found to support the verdict, it will not bedisturbed on appeal; State v. White, 146 Mont. 226, 239, 405 P.2d 761; State v. Stoddard, 147 Mont. 402, 408, 412 P.2d 827.

Defendant's contention that he lacked the requisite criminal intent to commit embezzlement is equally unconvincing. The evidence supports the conclusion he deliberately used public moneys from the activity fund for nonschool purposes without authority of law. The question of intent is a question for the jury; State v. Madden, 128 Mont. 408, 416, 276 P.2d 974; State v. Cooper, 158 Mont. 102, 110, 489 P.2d 99. A verdict supported by substantial evidence which is legally admissible must stand on appeal.

For these reasons, defendant's contentions on the first two issues are without merit.

Defendant urges this Court that he could not and did not receive a fair trial in Powell County, because of community prejudice against him engendered by his publicized guilty plea in another school district related case in the same community. The gist of defendant's argument was expressed by defense counsel when the motion for change of place of trial was renewed during voir...