State v. Moreno

• Decision Date: 14 March 1968
• Citation: 240 A.2d 871,156 Conn. 233
• Court: Connecticut Supreme Court
• Parties: , 5 UCC Rep.Serv. 385 STATE of Connecticut v. Maureen D. MORENO.

Page 871

240 A.2d 871

156 Conn. 233, 5 UCC Rep.Serv. 385

STATE of Connecticut v. Maureen D. MORENO.

Supreme Court of Connecticut.

March 14, 1968.

Leo Gold, Stamford, with whom was Isadore M. Mackler, Stamford, for appellant (defendant).

Joseph T. Gormley, Jr., Asst. State's Atty., with whom, on the brief, was Otto J. Saur, State's Atty., for appellee (state).

Before ALCORN, HOUSE, THIM, RYAN and COVELLO, JJ.

RYAN, Associate Justice.

The defendant was charged with embezzlement by agent in violation of General Statutes § 53-355. ¹ The information alleges that 'between the 20th day of August 1965 and the 30th day of September 1965, at Stamford * * *, the said Maureen D. Moreno, being the agent of Jean Ballin Designs, Inc., did appropriate to her own use or to the use of others the sum of Four Thousand ($4,000) Dollars in the care and custody of the said Maureen D. Moreno as such agent, with intent to defraud the said Jean Ballin Designs, Inc.'

The sole issue on this appeal is whether the evidence was sufficient, beyond a reasonable doubt, to sustain the conviction. To determine this question, it is necessary to review the evidence which has been printed in the appendices in the briefs. Practice Book § 644; State v. Carroll, 152 Conn. 703, 204 A.2d 412; State v. Bill, 146 Conn. 693, 694, 155 A.2d 752; Maltbie, Conn.App.Proc. § 213. From the evidence it appears that in July, 1965, the defendant was employed as a bookkeeper by Jean Ballin Designs, Inc., a corporation located in Stamford, hereinafter referred to as the corporation. Her duties consisted of general office work, including bookkeeping, payroll, handling of accounts payable, making out checks, keeping accounting records and general office supervision of employees. In late August, 1965, Douglas Ballin, Jr., the corporation's president, went on a vacation, leaving with the defendant eight blank, presigned checks with which she was to pay bills which would become due. No one but Ballin and his wife had authority to sign checks. On his return from his vaction, Ballin found that five of the checks had been used in accordance with his instructions and that three of them, including checks numbered 687 and 695, remained. He then gave the defendant instructions to use the three remaining checks to pay the first bills to become due. At this time, checks 687 and 695 contained only his signature and nothing else. The regular commercial account of the corporation for the payment of all obligations other than payroll was at The Fairfield County Trust Company. A record of all checks drawn on the commercial account of the corporation was kept in a cash disbursement journal, in which each individual check was recorded. Ballin was familiar with the handwriting of the defendant. All entries in the cash disbursement journal from August 13 to August 31 were in the handwriting of the defendant. The entry opposite check 687 in the handwriting of the defendant was 'ruined by checkwriter' and opposite check 695 the word 'voided' was entered. Both of these checks were negotiated but were never found in the bank statements of the corporation which were in the defendant's control. Check 687, made payable to Emilio Greco in the sum of $1500, was paid by the bank and charged against the regular commercial account of the corporation on August 31, 1965. Check 695, made payable to Emilio Greco in the sum of $2500, was paid by the bank and charged against the regular commercial account of the corporation on September 30, 1965. Emilio Greco, the payee on these checks, was a brother-in-law of the defendant. Greco was neither an employee nor a creditor of the corporation, and Ballin never authorized the defendant to make any check payable to him. The signature on both checks was that of Ballin, but none of the other handwriting on these checks was that of either Billin or his wife. This was determined by Ballin through an inspection of microfilms at the office of The Fairfield County Trust Company. The course of check 687 was from the Bank of Naples directly to the Chase-Manhattan Bank, to the Federal Reserve Bank, and then to The Fairfield County Trust Company. Check 695 went from the Bank of Naples to the Federal Reserve Bank of then to The Fairfield County Trust Company for payment.

Under General Statutes § 53-355, there are four essentials of the crime of empezzlement. They are: (1) agency of the defendant; (2) receipt by the defendant of the property described in the information; (3) conversion or appropriation of such property to the defendant's own use or the use of others; and (4) a felonious intent to defraud. State v. Serkau, 128 Conn. 153, 157, 20 A.2d 726; State v. Schofield, 114 Conn. 456, 458, 159 A. 285.

The defendant claims that she was not an agent within the meaning of § 53-355 and that an examination of the statute leads to the logical conclusion that the legislature intended to provide a penalty against those persons who stood in some fiduciary relationship with their principal as defined by statute. She urges that the class of persons set forth in the statute is composed of auctioneers, commission merchants, factors, brokers, agents or attorneys, each of whom is one who, by the very nature of his calling, could be holding money or property for another, and that to place the defendant, a bookkeeper and office worker, in the same category as the professions and occupations set forth in the statute would be to stretch the statute beyond its obvious intent and language. This is, of course, a penal statute and must be strictly construed. It cannot be extended by construction to persons who are not included within its terms. State v. Parker, 112 Conn. 39, 46, 151 A. 325.

Under the earlier statutes of several of the states, punishment was provided for any agent, clerk or servant of any private person who should convert to his own use money or property of another which came into his possession by virtue of such employment. The courts of such states held that commission merchants, auctioneers, attorneys and persons doing a general collection business stood upon a different footing from servants and special agents and were not within the term 'agent' as used in such a statute. 'In seeking to ascertain the legislative intent, we may look to the history of the statute and the policy underlying it. State v. Cambria, 137 Conn. 604, 606, 80 A.2d 516.' Lee v. Lee, 145 Conn. 355, 358, 143 A.2d 154, 155. The legislative history of § 53-355 is set forth in State v. Lanyon, 83 Conn. 449, 452, 76 A. 1095. Prior to 1897, our statute relating to embezzlement provided that '(e)very officer or agent of any private corporation * * *, or any agent of any business house or private individual, who shall take, purloin, secrete, or in any way appropriate to his own use * * * any of the goods, moneys, or choses in action, in the care or custody of, belonging to, or deposited with, such corporation, * * * house, or individual, with intent to defraud another' should be punished. Rev. 1888, § 1580. In the civil action of Thompson v. Beacon Valley Rubber Co., 56 Conn. 493, 16 A. 554, this court was asked to rule that a consignee of goods to be sold on commission could not be guilty of embezzlement under this statute. The point was not decided. The court, however, said that such a consignee belonged to that class of agents called 'factors' and that the court was not prepared to say that he was not within the purview of § 1580. After this decision, § 1580 was repealed, and the statute which is now General Statutes § 53-355 was enacted in its place. Public Acts 1897, c. 137. The only change in the statute between 1897 and the present time relates to the penalty provided therein. Public Acts 1915, c. 70. 'By this act commission merchants, auctioneers, factors, brokers, attorneys, and agents are made amenable for the misappropriation of money, goods, or choses in action which are in their care and custody in such capacity, and for money received by them for the sale of such goods or choses in action, or collected by them in such capacity. This language is broad and comprehensive. It includes all auctioneers, commission merchants, factors, brokers, and agents, those employed in a general business as well as those specially employed, those who do the business upon commission, and those who do not so act. There is no reason for saying that a narrower meaning was intended. Factors, brokers, and commission merchants ordinarily work upon commission. In the decisions to which allusion has been made and upon which the defendant relies, this class of agencies was held not to be included in the statutes referring to clerks, agents, and servants. It was doubtless in view of these decisions that the language of the present statute was used, and to settle any question which might exist in this state as indicated in the case of Thompson v. Beacon Valley Rubber Co., 56 Conn. 493, 16 A. 554.' State v. Lanyon, supra, 83 Conn. 453, 76 A. 1097. The inclusion in the present statute of auctioneers, commission merchants, factors, brokers and attorneys was not intended by the legislature to limit the interpretation of the term 'agent' but to increase the scope of coverage of the statute and to clarify its meaning.

In an earlier case, this court was called on to determine whether an employee of a municipality could be found guilty under the terms of another embezzlement statute. Section 1583 of the Revision of 1888 provided that '(a)ny magistrate, or officer, or agent of any public community, who shall, with intent to prejudice it, appropriate its property to the use of any person, or make upon its books any false entry, or draw any order upon its treasury, or present or aid in procuring to be allowed any fraudulent claim againt any such community, shall be' punished. The information alleged that the defendant was an agent of the town and while so employed by the town did, as agent of the town, aid in...