State v. Peterson
| Decision Date | 30 April 1926 |
| Docket Number | No. 25269.,25269. |
| Citation | 208 N.W. 761,167 Minn. 216 |
| Parties | STATE v. PETERSON. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Wilkin County; Stephen A. Flaherty, Judge.
K. K. Peterson was convicted of grand larceny, and he appeals. affirmed.
Lewis E. Jones, of Breckenridge, and C. M. Hanson, of Ft. Dodge, Iowa, for appellant.
C. L. Hilton, Atty. Gen., Henry G. Wyvell, Co. Atty., of Breckenridge, for the State.
Defendant, having been convicted of grand larceny in the first degree, appealed from a judgment entered after an order denying his motion for a new trial.
The facts are these: Defendant was the treasurer of the Farmers' Co-operative Creamery Company of Rothsay, herein referred to as the company. He was also chairman of the board of directors of the First State Bank of Rothsay, with which the company carried its checking account. Defendant received a salary of $35 per month from the company and he alone, so far as the bank was concerned, had control of the company's money. As chairman of the board he had access to the internal affairs of the bank and at times participated in its routine business. On October 22, 1923, defendant, as administrator of the estate of Martin Anderson, made a settlement with Ole Anderson, the heir. The amount due the heir was $3,340. The company then had $2,696.13 on deposit. Defendant had on deposit in the bank $840, or perhaps more. He made out a debit slip against the account of the company for $2,500, signed and delivered it to the bank, which, through its president, issued and delivered to him five cashier's checks each in the sum of $500. He also received two other cashier's checks for $500 and $340, respectively, covering his deposit of $840. The bank charged the debit slip to the account of the company the same as a check for that amount. On the same day defendant indorsed and delivered all of the cashier's checks to Ole Anderson in settlement of the amount due from said estate. One of the $500 certificates was cashed by Anderson at a bank in Barnesville, another at a bank in Fergus Falls, and he indorsed and turned in to the First State Bank of Rothsay two of them, receiving therefor a certificate of deposit. On October 30, 1923, the First State Bank of Rothsay closed.
On May 19, 1924, defendant was indicted. The accusation was the embezzlement of lawful money of the United States of the value of $2,500 while being the agent and employé of the company. The charge rests upon the facts above stated.
1. Defendant now says that his conviction cannot stand because the money involved belonged to the bank and not to the company named in the indictment. In this transaction the bank was represented by its president who executed the cashier's checks. The record does not show that he or the bank had any notice or knowledge of defendant's wrongful designs. Perhaps, because the cashier's checks were made payable to defendant, individually, and not as treasurer, the bank was charged with knowledge of defendant's lack of authority to do what he was in fact doing. Cahan v. Empire Trust Co. (C. C. A.) 9 F.(2d) 713. But that is of no importance in this case. Money had previously been withdrawn from this account by defendant by means of debit slips in place of checks. This was proper. Counsel invokes the rule as to the relationship between a depositor and a bank. We think the rule is without application. The important question is whether this transaction was any different than if defendant had possessed $2,500 in cash owned by the company and embezzled it.
A. Certainly the money of the company when deposited with the bank became the money of the bank. But when the debit slip was made and accepted by the bank there was, in law, a segregation of that much of the money of the bank from its general funds, which became the property of the company. The defendant as treasurer was entitled to it at his option in such form as he might elect consistent with ordinary banking business. Instead of taking the currency, a certificate of deposit, or a draft he chose cashier's checks. In this transaction the money of the depositor was involved. Certainly this was true, even though it was but for a short time. Any time is sufficient.
B. Accepting another view, we may consider, so far as defendant is concerned, the cashier's checks as the property of the company. Its money had paid for them. They were a means or vehicle, if not a device, used in withdrawing the actual money from the bank. Defendant had authority to withdraw the money. The misappropriation of which he was undoubtedly guilty consisted not in getting the cashier's checks, but in what he did with them. They evidenced a demand of the company against the bank. The money or its equivalent which the bank parted with in redeeming them would, as far as defendant is concerned, be the money of the company. Defendant by his manipulation paid his obligation to Anderson. He therefore caused the bank to part with money belonging to the company. The commission of the offense charged is complete.
C. Defendant as treasurer deposited his principal's money in the bank. He withdrew $2,500 in five cashier's checks, payable to himself. He used them to pay his personal debt. They were the equivalent of money. They passed as such. The cashier's checks and the bank itself were mere instrumentalities which defendant called to his assistance. The transaction for all practical purposes was no different than if he had kept and so used the money coming into his hands originally without ever depositing it in the bank. It was a simple transaction. He gained $2,500. His principal lost $2,500. The purpose and the result are obvious. He received the money. In what form is not important. It has disappeared by his willful and intentional act. In ordinary parlance he took the company's money. The fact that he deposited it in the bank and withdrew it as indicated cannot destroy the fact that he was handling money. Defendant's claims are fanciful. Why quibble about whether what he got was the company's money? It was neither currency nor specie; but what of it? It served him as money. The loss was just as keen or severe as if it had been cash. The company is the only one that lost and it is the only one he intended should lose. This transaction has a very definite meaning and understanding in everyday life. All we need to do is to treat it naturally. Means for facilitating business do not change the real character of the transaction. In the administration of the criminal law we are more interested in the substance and effect of the transaction than in the technical rules of terminology. Defendant understood the charge in the indictment. He has not been misled. His substantial rights have not been invaded. We construe this transaction as an embezzlement of the company's money, within the meaning of subdivision 2, § 10358, G. S. 1923. This conclusion finds support in section 10662, G. S. 1923.
2. The contention that the proofs offered are at variance with the indictment cannot be sustained. Perhaps our construction of the transaction, as hereinbefore stated, makes it unnecessary to discuss this branch of the case. On the other hand, the authorities which hold that there is not a fatal variance between an indictment for embezzling money and proof that the accused converted drafts or checks support our conclusion. State v. Cary, 151 N. W. 186, 128 Minn. 481; People v. Dimick, 14 N. E. 178, 107 N. Y. 13; People v. Crane, 168 P. 377, 34 Cal. App. 599; Fulkerson v. State, 189 P. 1092, 17 Okl. Cr. 103; State v. Hoshor, 67 P. 386, 26 Wash. 643; Leach v. State, 81 S. W. 733, 46 Tex. Cr. R. 507; Powell v. State, 198 S. W. 317, 82 Tex. Cr. R. 163; Gurley v. State, 248 S. W. 902, 157 Ark. 413; Prinslow v. State, 121 N. W. 637, 140 Wis. 131; section 10662, G. S. 1923. As said by Mr. Justice Dibell in the Cary Case:
"To hold a fatal variance under these circumstances is but another application of a technicality, protecting no right of the accused, but tending to obstruct the administration of justice."
3. Defendant attacks the sufficiency of the indictment and cites State v. McCullough, 195 N. W. 764, 157 Minn. 69, in support of his claim that an indictment under subdivision 2, § 10358, G. S. 1923, must allege a fiduciary relation between the accused and the owner of the property. In this case the indictment states that defendant was the agent and employé of the company. This is the necessary fiduciary relation. The indictment also alleges possession of $2,500, and says:
"Being then and there authorized by agreement and competent authority to hold such money," etc.
This is a sufficient allegation as to this element. It need not name the terms (State v. Marx, 166 N. W. 1082, 139 Minn. 448), nor the persons with whom the agreement or arrangement was made, nor the source of ...
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