State v. Peke

• Decision Date: 01 March 1962
• Docket Number: No. 6827,6827
• Citation: 371 P.2d 226,70 N.M. 108,1962 NMSC 33
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. John A. PEKE, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 226

371 P.2d 226

70 N.M. 108

STATE of New Mexico, Plaintiff-Appellee, v. John A. PEKE, Defendant-Appellant.

No. 6827.

Supreme Court of New Mexico.

March 1, 1962.

Rehearing Denied May 17, 1962

Spiess & Hackney, Albuquerque, for appellant.

Hilton A. Dickson, Jr., Atty. Gen., Boston E. Witt, F. Harlan Flint, Asst. Attys. Gen., for appellee.

CARMODY, Justice.

Defendant was convicted of embezzlement, and this appeal follows:

The questions raised have to do with (1) the propriety of an amendment to the information; (2) the proof as to entrustment; (3) a claimed variance between the allegations and the proof; (4) alleged failure of proof as to certain counts of the information; (5) the competency of evidence of a claimed collateral offense; (6) an attack on the testimony of an accountant; and (7) a challenge as to certain jury instructions.

The facts are extremely complicated; but in order to avoid any more detailed discussion under the various points than is absolutely necessary, we will summarize the pertinent facts.

Defendant Peke was the executive secretary of the Associated Plumbing, Heating and Piping Contractors of New Mexico, Inc., which will be termed hereafter the 'State Association.' Also involved is the Associated Plumbing and Heating Contractors of Albuquerque, which we will refer to as the 'City Association.' In addition, there were other local or district associations throughout New Mexico which co-operated with the State Association. The State Association and Peke had offices in a building owned by the City Association. The State Association had only one bank account, which was authorized by the board of directors, this being in the Albuquerque National Bank, although in 1953 a so-called 'convention account' was opened in the American Bank of Carlsbad, New Mexico. It is this latter account that is the source of a large part of the difficulty with which we are concerned.

Peke was not authorized to sign checks on the Albuquerque account, but the signature card of the Carlsbad account discloses that the president in 1953 and defendant Peke were authorized to write checks. Additionally, the Carlsbad account was never authorized by the board of directors, and actually was unknown or not remembered by any of the officials of the State Association except Peke.

The State Association consisted of master plumbers throughout New Mexico, and was designed to promote the general welfare of the trade. In addition to many other activities, it assumed the responsibility of collecting payments from master plumbers for the operation of a trust agreement, having as its name 'New Mexico Pipe Trades Welfare Fund,' which was for the benefit of journeyman plumbers. The State Association also processed insurance claims under this trust fund. The defendant Peke, on behalf of the State Association, had charge of these activities, attended the meetings of the board of trustees, and typed the minutes. However, the trust maintained a separate bank account, and the defendant was not authorized to write checks on this account. Although the defendant is not charged with embezzling any of the money belonging to the trust, it is of importance, because testimony was received regarding the deposit of certain trust payments directly to the association's account, part of which was supposed to compensate for work done for the trust, and because evidence of an audit of the trust funds was introduced.

Another fund which must be discussed is that known as the 'Fixture Stamp Plan,' which was a source of considerable revenue. The problem as to this fund is whether it belonged to the State Association or to the Albuquerque City Association, for if it was the latter, then the charge of embezzlement from the State Association cannot be sustained as to many of the counts of the information. Money in the Fixture Stamp Plan account could only be withdrawn by checks signed by J. D. Smith, an accountant, and the defendant Peke, both signatures being required.

The defendant Peke was in charge of the State office and, during the period 1953 to 1958, more or less managed and directed the operation of the State Association, the Fixture Stamp Plan, and, to a lesser extent, the New Mexico Pipe Trades Welfare Fund. Following the discovery of the account in the Carlsbad bank, the account was closed and the defendant was charged with embezzlement. The information was in fifteen counts, charging Peke with embezzling some $38,148.49 in money, being the property of Associated Plumbing, Heating and Piping Contractors of New Mexico. Following an extended trial, the defense rested without putting on any evidence, after making certain motions for a directed verdict, and the jury returned a verdict finding the defendant guilty of fourteen counts and not guilty as to one count involving the sum of $310.00. The claimed acts of embezzlement consisted of depositing certain checks belonging to the Association in the Carlsbad account and subsequently withdrawing the funds; the depositing of certain other checks in the defendant's own personal account in Albuquerque; and, lastly, the cashing of certain other checks of Franchini Brothers Delicatessen in Albuquerque.

As stated initially, the defendant relies upon several points of reversal, and we will consider them in the order submitted.

The first claimed error is the action of the trial court in permitting an amendment to the information on the morning that the case was set for trial. Count one of the information charged the defendant with the embezzlement of a total of $32,678.99, and, as stated to the trial court by the district attorney, the purpose of the amendment was to reduce the amount of this particular count to $27,857.27, because the original amount included some lesser amounts charged in eight other counts of the information.

Count one charged the embezzlement of a total amount between September 13, 1955, and March 12, 1958, whereas counts 2, 3, 4, 9, 11, 12, 13 and 14 charged embezzlement of specific sums on a definite date within the same period. It is obvious that unless the amendment had been made, the defendant could not have been convicted and sentenced on both count one and the other eight counts, because the latter eight would have been included within count one. See, State v. Quintana, 1961, 69 N.M. 51, 364 P.2d 120; and State v. Montano, 1961, 69 N.M. 332, 367 P.2d 95. However, it is equally apparent that if the charge had originally been made as proposed by the amendment, the defendant could not have objected, nor would any more nor any fewer defenses have been available. In essence, the amendment merely particularized the exact amounts charged and eliminated duplication. Considered thusly, the amendment corrected a matter of form only. See, 4 Wharton's Criminal Law and Procedure, Sec. 1880. Section 41-6-37, N.M.S.A., 1953 Comp., provides as follows:

'41-6-37. Defects, variances and amendment.--(1) No indictment or information that charges an offense in accordance with the provisions of section 42-607[41-6-7] shall be invalid or insufficient because of any defect or imperfection in, or omission of, any matter of form only, or because of any miswriting, misspelling or improper English, or because of the use of sign, symbol, figure or abbreviation, or because of any similar defect, imperfection or omission. The court may at any time cause the indictment, information or bill of particulars to be amended in respect to any such defect, imperfection or omission.

'(2) No variance between those allegations of an indictment, information or bill of particulars, which state the particulars of the offense, whether amended or not, and the evidence offered in support thereof shall be ground for the acquittal of the defendant. The court may be any time cause the indictment, information or bill of particulars to be amended in respect to any such variance, to conform to the evidence.

'(3) If the court is of the opinion that the defendant has been prejudiced in his defense upon the merits by any such defect, imperfection or omission or by any such variance the court may because of such defect, imperfection, omission or variance, unless the defendant objects, postpone the trial, to be had before the same or another jury, on such terms as the court considers proper. In determining whether the defendant has been prejudiced in his defense upon the merits, the court shall consider all the circumstances of the case and the entire course of the prosecution.

'(4) No appeal, or motion made after verdict, based on any such defect, imperfection, omission or variance shall be sustained unless it is affirmatively shown that the defendant was in fact prejudiced thereby in his defense upon the merits.'

Also, Sec. 41-6-38, N.M.S.A., 1953 Comp., provides:

'41-6-38. Misjoinder, multiplicity, duplicity and uncertainty.--(1) No indictment or information shall be invalid or insufficient for any one or more of the following defects merely:

'(1) That there is a misjoinder of the parties defendant.

'(b) That there is a misjoinder of the offenses charged.

'(c) That there is duplicity therein.

'(d) That any uncertainty exists therein, provided it charges an offense in accordance with section 42-607[41-6-7].

'(2) If the court is of the opinion that the defects stated in subsection 1, clauses (a), (b) and (c) or any of them exist in any indictment or information it may order the district attorney to sever such indictment or information into separate indictments or informations or into separate counts, as shall be proper.

'(3) If the court is of the opinion that the defect stated in subsection 1, clause (d) exists in any indictment or information it may order that a bill of particulars be filed in accordance with section 42-608[41-6-8].

'(4) No appeal, or motion made after verdict, based on any of the defects enumerated in this section shall be sustained unless it is affirmatively shown that the defendant was in...