State v. McNamara

• Decision Date: 15 July 1941
• Court: Connecticut Supreme Court
• Parties: STATE v. McNAMARA.

22 A.2d 10

128 Conn. 273

STATE

v. McNAMARA.

Supreme Court of Errors of Connecticut.

July 15, 1941.

Rehearing Denied Oct. 9, 1941.

Appeal from Superior Court, Fairfield County; Dickinson, Judge.

Charles J. McNamara wus convicted of the crime of embezzlement, and he appeals.

No error.

Argued before MALTBIE, C. J., and AVERY, BROWN, JENNINGS, and ELLS, JJ.

Thomas R FitzSimmons, of New Haven, for appellant.

Lorin W. Willis, State's Atty., and Otto J. Saur, Asst. State's Atty., both of Bridgeport, for appellee.

JENNINGS, Judge.

The defendant appeals from the judgment finding him guilty of embezzlement, alleging refusal to charge as requested and as required by the facts claimed to have been proved, error in the charge and in rulings on evidence.

The state offered evidence and claimed to have proved the following facts: The defendant was appointed city tax marshal by the tax collector of Bridgeport on July 20, 1933, and continued as such until January 25, 1940. By custom, acquiesced in by the tax collector, the defendant did not turn in partial collections on small accounts but was permitted to withhold them until fully paid. He was entitled to a $2 writ fee and a 2 per cent commission with a minimum fee of $5 upon each tax warrant upon which collection was made. The only checking account maintained by the defendant and his wife was in the First National Bank and Trust Company under the name of "Charles J. McNamara, City Marshal." The defendant and his wife both made deposits of tax collections and personal funds in this account and checks were drawn thereon to the tax collector and to pay household and personal bills. No sufficient or accurate record of payments received on account of taxes was kept by him although he made interim reports of collections with remittances. On June 29, 1939, the tax collector requested a report of all tax warrants on which partial collections had been made and not remitted. Between that time and November, 1939, the defendant deposited in his checking account and paid to the tax collector substantial sums, obtained from various sources, to make up the shortage claimed by the state to have existed. These sums' were, however, insufficient for that purpose by several thousand dollars. As of July 1, 1939, this shortage amounted to $16,738.62 and was due to felonious misappropriation of money collected by him for the tax collector, with intent to cheat and defraud the city of Bridgeport.

The claims of the defendant did not materially differ from those of the state as to the general method of procedure followed by him although this was stated in much greater detail and he specifically claimed that he never knew exactly how his accounts stood. He did claim that with the fees and commissions to which he was entitled, the sums turned over to make up the shortage and a sum of money deposited with his attorney, there was sufficient money paid in or available to make up any shortage existing on the date of his resignation, January 25, 1940. He also claimed that none of the city's money was taken or retained by him with felonious intent.

The defendant assigns as error the refusal to charge nine requests. None of these requests conform to the rule that each shall contain "a single proposition of law clearly and concisely stated, with the citation of authority upon which such suggestion is based. If the request is granted, the court shall apply the proposition of law to the facts of the case." Practice Book, 1934, p. 59, § 156. These requests are an illustration of the reason for the rule. They contain long, and somewhat intricate statements of fact, based on the defendant's interpretation of the evidence. As a result it is hard for us, and must have been hard for the trial court, to know the precise point to which the defendant wished to call attention. Analyzing them as well as we can, they relate to the definition of the crime, the effect of the statute of limitations, the relevancy of the existence of various claims of proof on the question of felonious intent and the effect of the retention of the fees for collection.

The crime was carefully defined. The court charged (Par. 127) that "The State must prove that at some time within the limits alleged [July 1, 1935 and June 30, 1939] the defendant did misappropriate some of the City's money with intent to defraud the City as this will be defined to you." This was a sufficient compliance with the request for a charge as to the application of the statute of limitations. The evidence is not before us but as far as we can judge from record and briefs, the case turned on the intent with which the money was taken or retained. The charge fully met this situation and meticulously protected the interests of the defendant in this regard. The court charged repeatedly that the state must prove the criminal intent as a fact. It charged that if the defendant used the funds under a belief, honestly entertained, that he had a right to do so, or retained the funds collected under a custom acquiesced in by the tax collector, he was entitled to an acquittal. Finally the court charged that, although the defendant was obliged to keep the city's funds somewhere, he was not obliged to keep them in a separate account, could mingle them with his own funds or keep them in his pocket and that proof of negligence in keeping his books was no substitute for the necessary proof of specific criminal intent.

Among the requests to charge was one to the effect that if, due to the custom of retaining the fee, a part of the deposit in the checking account belonged to ...