State v. Marco

Decision Date08 November 1897
Citation32 Or. 175,50 P. 799
PartiesSTATE v. MARCO.
CourtOregon Supreme Court

Appeal from circuit court, Multnomah county; T.A. Stephens, Judge.

Cesaro Marco was convicted of embezzlement, and appeals. Reversed.

Martin L. Pipes, for appellant.

C.M Idleman, Atty. Gen., and D.J. Malarkey, Dep Dist. Atty., for the State.

BEAN J.

During the year 1895 the defendant was the treasurer of the Mazzini Society, a fraternal organization in the city of Portland and as such received about $1,500 of its funds. The financial embarrassment of his bondsmen prompted the society in October, 1895, to look after its money, and a committee for that purpose waited upon the defendant, but, being unable to get a satisfactory settlement, caused his arrest and commitment to await the action of the grand jury upon a charge of embezzlement. On January 13, 1896, a new set of officers having been elected, a demand in writing was made upon him to turn over to his successor in office all the money and property of the society in his hands. This he failed to do at the time, and a few days later the indictment upon which he was tried and convicted was returned against him. While the amount of money alleged to have been embezzled by the defendant is the sum of $1,500, his conviction depended largely, if not entirely, upon the fact as to whether a certain loan of $1,150, made by him to Arata, one of his bondsmen, on April 30, 1895, was wrongful, and made with intent to steal the money. Concerning this loan, the defendant, who offered himself as a witness in his own behalf, testified, among other things, that at the time he made it he took a note therefor, payable to himself, which he indorsed over to Cordano, the president of the society, for collection as its funds, some two or three weeks before he was arrested, and before any demand had been made upon him for the money. He was thereupon asked by his counsel, "Did you inform him (meaning Cordano) what it was for (meaning the indorsement of the note)?" This question was objected to as incompetent and immaterial, and a colloquy ensued between court and counsel, which terminated in the objection being sustained, and the witness not allowed to answer. In our opinion, this was error. A felonious intent is an essential ingredient of the crime charged against the defendant, and before he can be convicted it must distinctly appear that he made an intentionally wrong disposal of the funds of the society, with a felonious intent to cheat and defraud it. The mere fact that he failed or was unable to pay the money over on demand of the committee or to his successor in office is not enough, if that intent is not plainly apparent. People v. Galland, 55 Mich. 628, 22 N.W 81; People v. Hurst, 62 Mich. 276, 28 N.W. 838; State v. Reilly, 4 Mo.App. 392; and Rap. Larceny, § 370. It follows that, if the defendant had authority to make the loan to Arata, as he...

To continue reading

Request your trial
8 cases
  • State v. Hanna
    • United States
    • Oregon Supreme Court
    • 16 Noviembre 1960
    ...879; State v. Coleman, 1926, 119 Or. 430, 435, 249 P. 1049; State v. Browning, 1905, 47 Or. 470, 472-473, 82 P. 955; State v. Marco, 1897, 32 Or. 175, 177, 50 P. 799. On principle there is no reason for making intent a necessary element of the crime under ORS 165.005 and dispensing with the......
  • Hinds v. Territory of Arizona
    • United States
    • Arizona Supreme Court
    • 26 Marzo 1904
    ... ... defendant as well as the court of the nature of the offense ... charged. Thompson v. State, 26 Ark. 330; ... Dillingham v. State, 5 Ohio St. 280; Cochran v ... United States, 157 U.S. 290, 15 S.Ct. 628, 39 L.Ed. 705 ... To the ... State, 34 Tex. App. 344, ... 30 S.W. 811 ... Felonious ... intent is an essential ingredient of embezzlement. State ... v. Marco, 32 Or. 175, 50 P. 799; People v ... Galland, 55 Mich. 628, 22 N.W. 81; People v ... Hurst, 62 Mich. 276, 28 N.W. 838; State v ... Reilly, 4 ... ...
  • State v. Johnston
    • United States
    • Oregon Supreme Court
    • 13 Junio 1933
    ...offense charged in the indictment and from the same corporation. Intent is an essential element of the crime of embezzlement, State v. Marco, 32 Or. 175, 50 P. 799, and evidence was admissible for the purpose of showing a criminal intent on the part of appellant. State v. Cooke, 130 Or. 552......
  • Hancey v. United States
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 6 Enero 1940
    ...v. Breese, D. C., 131 F. 915; Moody v. People, 65 Colo. 339, 176 P. 476, 478; Ex parte Huston, 27 Idaho 231, 147 P. 1064; State v. Marco, 32 Or. 175, 50 P. 799. The record shows that Hancey issued a cashier's check to make his own installment payment due General Motors Acceptance Corporatio......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT