State v. Lockie

• Decision Date: 16 February 1927
• Citation: 253 P. 618,43 Idaho 580
• Parties: STATE, Respondent, v. JAY J. LOCKIE, Appellant
• Court: Idaho Supreme Court

253 P. 618

43 Idaho 580

STATE, Respondent, v. JAY J. LOCKIE, Appellant

Supreme Court of Idaho

February 16, 1927

EMBEZZLEMENT-INTENT-PROSECUTION BROUGHT UNDER PROPER STATUTE-EVIDENCE.

1. Where defendant's employer maintained a credit at bank which was subject to defendant's check for purchase of supplies, and thus within his care and control, money received in the bank was subject to embezzlement by him regardless of secret intent he may have entertained to steal it; there being no limitation on manner of obtaining it, if it was controlled by virtue of his employment.

2. Employee held properly prosecuted for embezzlement of employer's funds, under C. S., section 8455, providing that clerk, agent or servant, appropriating or secreting with fraudulent intent, property which has come into his control or care by virtue of employment, is guilty of embezzlement, rather than under section 8451, requiring that appropriation must have been relating to property within possession or control by virtue of trust.

3. In prosecution for embezzlement by employee of employer's funds entrusted to him for purpose of purchasing supplies permitting witness, who was assistant postmaster, to read certain book entries purporting to be records of purchases made by defendant in course of his employment, held proper, it not being necessary that whole book be offered in evidence, since particular entries desired were properly identified by testimony as to manner of keeping book.

4. Evidence, in prosecution for embezzlement of employer's fund by employee, held sufficient to warrant jury in finding that employer lost money alleged to have been embezzled.

APPEAL from the District Court of the Eleventh Judicial District, for Twin Falls County. Hon. Wm. A. Babcock, Judge.

Appellant was convicted of embezzlement. Affirmed.

Affirmed.

Stephan & North, for Appellant.

In embezzlement the property comes into one's possession lawfully and the felonious intent to appropriate the property is formed after possession is gained; in larceny, possession is acquired through a trespass and the felonious intent to appropriate exists at the time possession is acquired. (C. S., secs. 8450, 8451; Leach v. State, 46 Tex. Cr. 507, 81 S.W. 733; United States v. Thomas, 69 F. 588; Bivens v. State, 6 Okla. Cr. 521, 120 P. 1033; Johnson v. State, 46 Tex. Cr. 415, 80 S.W. 621; 9 R. C. L. 1266; People v. Edwards, 72 Cal.App. 102, 236 P. 944; People v. Wright, 66 Cal.App. 782, 226 P. 952; Doss v. People, 158 Ill. 660, 49 Am. St. 180, 41 N.E. 1093; Beasley v. State, 138 Ind. 552, 46 Am. St. 418; People v. Miller, 169 N.Y. 339, 88 Am. St. 546-555, and notes, 62 N.E. 418; Commonwealth v. Barry, 124 Mass. 325; Vought v. State, 135 Wis. 6, 128 Am. St. 1008, 114 N.W. 518, 646.)

Where there are several sections of the embezzlement statutes the charge must be brought under the proper section, and before a conviction can be had the state must prove that the offense of the accused comes within the section upon which the charge is based. (C. S., secs. 8451, 8453, 8455; 9 R. C. L. 1267, 1287; State v. Matthews, 143 Tenn. 463, 13 A. L. R. 314, 226 S.W. 203; note, 87 Am. St. 34; Commonwealth v. Ryan, 155 Mass. 523, 31 Am. St. 560, 30 N.E. 364, 15 L. R. A. 317; Pullam v. State, 78 Ala. 31, 56 Am. Rep. 21; In re Huston, 27 Idaho 231, 147 P. 1064.)

A witness is not entitled to read to the jury entries made in a book of records kept by a postoffice until the book itself has been identified and admitted in evidence. (C. S., sec. 7970; Stolz v. Scott, 28 Idaho 417, 154 P. 982.)

To be an embezzlement it must be shown that the owner of the property actually suffered a loss of the property. (Higbee v. State, 74 Neb. 331, 104 N.W. 748; McAleer v. State, 46 Neb. 116, 64 N.W. 358.)

A. H. Conner, Attorney General, and John W. Cramer and Leon M. Fisk, Assistant Attorneys General, for Respondent.

Any agent who has money in his possession, which comes into his possession by virtue of his agency, is punishable as embezzlement if he fraudulently converts it. (Brown v. State, 99 Tex. Cr. 441, 270 S.W. 179; State v. Taberner, 14 R. I. 272, 51 Am. Rep. 383; State v. Gillaspie, 11 Okla. Cr. 631, 150 P. 96; Ex parte Hedley, 31 Cal. 108.)

The statement that property received "by virtue of his employment" refers only to property coming into the hands of the agent for his employer is without foundation. (Ex parte Hedley, supra; People v. Gallagher, 100 Cal. 466, 35 P. 80.)

There is no variance between the crime charged and the proof so far as the statute is concerned. (C. S., secs. 8450, 8451, 8455.)

The matter of the sufficiency of the identification of exhibits rests in the discretion of the lower court. (Stolz v. Scott, 28 Idaho 417, 154 P. 982; Jones on Evidence, sec. 573; Bull Remedy Co. v. Clark, 109 Minn. 396, 18 Ann. Cas. 413, 124 N.W. 20, 32 L. R. A., N. S., 519.)

BRINCK, Commissioner. Wm. E. Lee, C. J., and Budge, Taylor and T. Bailey Lee, JJ., concur.

OPINION

BRINCK, Commissioner.

Appellant was convicted of the crime of embezzlement and appeals from the judgment.

The evidence shows that appellant was employed as a bookkeeper by the Idaho Power Company, hereinafter referred to as the company, in its Twin Falls branch office, from January 9, 1920, to July 9, 1925; that for the purpose of providing funds for the payment of current expenses of the Twin Falls office, the company maintained in the First National Bank of Twin Falls a deposit account of about $ 1,200, carried in the name of Charles Neeley, division manager, and called the petty cash fund; that part of appellant's duties was the purchase of office supplies, including, among other things, postage stamps and stamped envelopes, and that to pay for such purchases, he was authorized to draw checks on the bank account above mentioned, signing them in the name of Neeley by himself. It further appears that when supplies were purchased for the office, a receipt from the vendor was customarily taken for the amount of the purchase, specifying the articles purchased and their price, which receipts were then sent by the Twin Falls office to the company's home office in Boise, whereupon the amount represented by the receipts was remitted by the Boise office to the Twin Falls office, by check payable to the division manager, which check was then deposited in the petty cash fund account. The evidence for the state tended to show that appellant, during the period of his employment, had abstracted from the petty cash fund deposit account some $ 15,000, made up of small amounts obtained from time to time, mainly by signing checks payable to cash, drawing the money, and converting it to his own use; that in order to conceal this practice, defendant upon drawing such a check would, with a part of the money so obtained, purchase stamped envelopes and take a receipt therefor, and would then alter the receipt by writing in a larger amount and specifying a larger purchase than that actually made, and would then deposit in his personal account, or otherwise appropriate to his own use, the balance of the money obtained upon the check. The raised receipt would be sent to the Boise office, which in turn remitted the full amount of the altered receipt for deposit in the petty cash fund account, by which means the deposit account was kept up to the desired $ 1,200. At times a check to make the purchase was drawn to the vendor for the amount of the purchase, and another check to cash drawn for the amount added by appellant to the receipt, which latter check appellant would not enter upon the check register kept by him.

Appellant urges that his offense, if any, is not embezzlement. It is contended that when he obtained possession of the money from the bank, it amounted to a trespass upon the owner's possession, in that, first, such possession was obtained by trick or fraud practiced upon the company by way of the altered receipts, and, second, because at the time he obtained the money he had already conceived the intention to fraudulently appropriate it, and thereby come into its possession unlawfully. Upon this idea that there was a trespass in his taking of the money, appellant contends that his crime, if any, was larceny and not embezzlement. (20 C. J. 410, 411.)

That he obtained the money by a trick, it is urged, is shown by the alleged fact that before he could obtain the money he must first alter the receipt and send it to the Boise office, and cause the amount represented thereby to be deposited in the Twin Falls bank, and then only could he appropriate the money thus deposited. In all instances that have been specifically called to our attention, the evidence shows that the appropriation of the money was concurrent in time with the alteration of the receipt representing the amount converted, and the remittance from the Boise office merely supplied the deficit which had thus arisen in the petty cash fund.

Conceding however, either that the deception practiced by defendant induced the company to deposit its funds in the Twin Falls bank, or that defendant formed his fraudulent intent before he cashed any check, it is not clear that he committed a trespass, or that the possession by the company of the property taken was susceptible of such trespass. But regardless of this question, if the statute under which the prosecution was had were directed only at the property in the possession of the wrongdoer, there is much authority to the effect that one who has received property ostensibly as an agent, or even as a bailee, cannot be heard to say that, by reason of his fraudulent intent, existing at the time he received the property, his taking was unlawful. (State v. Rothrock, 45 Nev. 214, 200 P. 525; Brown v. State, 99 Tex. Crim. 441, 270...