State v. La Manca

• Decision Date: 05 March 1957
• Docket Number: No. 10836,10836
• Citation: 96 S.E.2d 667,142 W.Va. 549
• Parties: STATE of West Virginia v. John B. LA MANCA.
• Court: West Virginia Supreme Court

Page 667

96 S.E.2d 667

142 W.Va. 549

STATE of West Virginia v. John B. LA MANCA.

No. 10836.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 15, 1957.

Decided March 5, 1957.

Syllabus by the Court

1. An indictment charging the defendant with failure to pay over and account for a definite sum of money received by the defendant at a specific time for a designated purpose is not sufficient to apprise defendant of a charge based upon defendant's failure to account for and pay over money received by defendant in a different amount and at a subsequent time, the undertaking embracing the charge in the indictment having been entirely completed before the second undertaking was commenced.

2. Testimony and proof of a receipt of money by defendant for the account of the complaining witness subsequent to and independent of a prior completed transaction will not sustain a conviction under an indictment specifying the deposit of funds with the defendant in the prior transaction, and in such case a fatal variance occurs and a conviction thereunder cannot be upheld.

Robinson & Stump, John S. Stump, Jr., Clarksburg, for plaintiff in error.

John G. Fox, Atty. Gen., Giles D. H. Snyder, Asst. Atty. Gen., for defendant in error.

DUCKER, Judge.

John B. LaManca was convicted in the Criminal Court of Harrison County, West Virginia, of embezzlement, and from an order of the Circuit Court of Harrison County refusing a writ of error, prosecutes this writ of error in this Court.

The indictment of LaManca charges: 'that John B. LaManca, on the--day of May, 1948, in the said County of Harrison, did feloniously embezzle, fraudulently convert to his own use and steal, certain United States currency of the value of Nine Hundred, Ninety-eight Dollars ($998.00) of the money and property of Sam Veltri, he, the said John B. LaManca, having then and there in his possession said United States currency, money and property by virtue of a certain office, place and employment, to-wit, agent for the said Sam Veltri, for the purpose of obtaining passage for Gaetano Veltri and Antonio Veltri from Italy to the United States and the admission of the said Gaetano Veltri and Antonio Veltri into the United States; against the peace and dignity of the State'.

Before setting forth the facts as disclosed by the evidence, it is appropriate, for a consideration of the facts, to say that it appears the defendant relies solely upon an assignment of error based upon the denial of defendant's motion made at the close of the evidence in the case to strike the evidence of the State, and to direct the jury to return a verdict of not guilty on the grounds (a) that there is in the record a complete lack of proof of essential facts required to be proved in order to sustain a conviction on the indictment in this case, and, (b) that there is a fatal variance between the proof and the indictment. In substance, this presents only the question of whether or not the facts shown by the evidence were such as to result in a variance between the charge made and the proof adduced.

The material facts shown by the evidence are to the following effect:

In June, 1946, Sam Veltri of Clarksburg, West Virginia, engaged the defendant, John B. LaManca, as his agent to obtain the transportation of his father, Gaetano Veltri, and his brother, Antonio Veltri, from Italy, and their admission into the United States giving the defendant five hundred dollars to cover the cost of such necessary airline passage. This attempt to obtain admission of the brother failed, but the five hundred dollar deposit was not returned to Sam Veltri. However, this fact is not specified in the indictment.

On May 11, 1948, after intervening contacts between Sam Veltri and defendant were had, including a trip to Washington by defendant with Veltri, Sam Veltri gave defendant $998 to cover the cost of air transportation and landing fees for his father and brother to come from Italy to the United States. Defendant, on May 26, 1948, procured the air transportation tickets and delivered them to Sam Veltri who forwarded them to his father and brother in Italy, and the father and brother, upon their failure to use them because of their inability to obtain admission into the United States, returned the tickets to Sam Veltri. Sam Veltri, late in 1948 or early 1949, brought the airline tickets to the defendant for the purpose of having defendant procure a refund of the purchase price which refund was made in the sum of $930.65, by a check of Transcontinental and Western Air, Inc., dated January 12, 1949, payable to Clarksburg General Agency, Inc., and cashed by the latter by endorsement in the name of the latter company by John B. LaManca, Secretary-Treasurer. This money was not repaid to Sam Veltri.

In June, 1950, upon demand of Veltri, the defendant gave Veltri his promissory note payable to Veltri on or before July 1, 1950, for $1,498, which represented the original $500 paid by Veltri and the $998 subsequently paid to defendant as hereinbefore shown. The only payment made by defendant was $300 in November, 1950, the defendant having replied to Veltri upon Veltri's demand for payment that he either didn't have the money...