State v. Ross

• Decision Date: 19 October 1909
• Citation: 55 Or. 450,104 P. 596
• Parties: STATE v. ROSS.
• Court: Oregon Supreme Court

104 P. 596

55 Or. 450

STATE v. ROSS.

Supreme Court of Oregon

October 19, 1909

Appeal from Circuit Court, Multnomah County; Geo. H. Burnett, Judge.

J Thorburn Ross was convicted, under B. & C. Comp. § 1807, and appeals. Judgment and sentence modified.

This defendant is charged, by information, jointly with Geo. H Hill, T.T. Burkhart, and John E. Aitchison, with the crime of larceny, committed in Multnomah county, Or., and upon change of venue the case was transferred to Marion county for trial. The substance of the charge is that on the 9th day of September, 1907, the Title Guarantee & Trust Company (hereafter referred to as the "Trust Company") was a corporation, carrying on a banking business of which the defendants were directors, and J.T. Ross, president, Geo. H Hill, vice president, T.T. Burkhart, treasurer, and that the defendants on that date, pretending to act for said Trust Company, had in their possession and control, for safe-keeping, as officers and directors of the Trust Company $288,426.87, belonging to the state of Oregon, and being a part of the irreducible school fund, agricultural college fund, and the university fund (hereafter referred to as the "educational fund"); that defendants, well knowing that such money belonged to that fund, did then and there willfully, unlawfully and feloniously convert the same to their own use, which money, prior to that date, they--as officers and directors of the Trust Company--had received for the state for safe-keeping, from Geo. A. Steel as State Treasurer.

The facts upon which the issues here arise are that the Trust Company, since the year 1904, has been engaged in banking but not exclusively in such business; that it had also prepared abstracts of title, written title insurance, made mortgage loans, receiving compensation for such services as a broker; that it had sold real estate on commission, and performed other services for compensation; that on the 14th day of January, 1907, when Geo. A. Steel took the office of State Treasurer, he had $400,000 of the state's money on deposit, subject to his check, in various banks within the state. Of this sum $35,000 was deposited with the Trust Company. At that time there was no segregation of the funds of the Treasurer, as between the educational and general funds, except on the books of the Treasurer, and such banks had not been notified to which fund the deposits belonged. Thereafter Steel continued the account with the Trust Company in the name of "Geo. A. Steel, State Treasurer," and deposits were made and checks drawn against the same from time to time, until the 3d day of June, 1907, at which time the Trust Company had been designated by the Treasurer as an active depository of the state, under the provision of section 6 of an act of the Legislative Assembly of the State of Oregon, adopted in the year 1907, providing for state depositories for state funds (Laws 1907, p. 248), at which time, evidently for the purpose of complying with the terms of such statute, Steel segregated the funds, and accordingly wrote to the Trust Company as follows:

"State of Oregon, Treasury Department.

"Salem, June 3, 1907.

"The Title Guarantee and Trust Company, Portland, Oregon--Gentlemen: I inclose herewith for credit of Geo. A. Steel, State Treasurer, Educational the following checks:

                            No. 319, Geo. A. Steel, State Treasurer, on you
                            ..........
                          
                            $272,449 02
                          
                            No. 34 Geo. A. Steel, State Treasurer, on Ladd &
                            Tilton ..... ,
                          
                            600 00
                          
                            
                          
                            -----------
                          
                            Total .................................................
                          
                            $275,049 02
                          
                

"Yours very truly, Geo. A. Steel,

"State Treasurer."

Thereupon, on the 5th day of June, 1907, an account was opened on the books of the Trust Company entitled, "Geo. A. Steel, Treasurer, Educational," the first item of which was the credit of the above amount, and thereafter, prior to November 6, 1907, the time of the appointment of the receiver for the Trust Company, many other credits were made in that account for checks sent by Steel for deposit therein, and on that day the balance to the credit of that account was $288,426.87. The remittances were all made in checks and drafts, except as above mentioned, and, except as stated, there was no evidence of possession of the money by defendants, or that the checks had been collected or converted into cash by the Trust Company, or any one. Until the 20th day of August, 1907, the Trust Company always had on hand cash exceeding the balance due from it on the educational account, but on the next day it was about $300 less than such balance. This deficiency increased thereafter until November 6, 1907, when the Trust Company's cash on hand lacked $274,882.73 of being equal to the balance due on such account, and on that date all its cash was turned over to the receiver.

Defendant Ross testified that he did not convert to his own use any money whatever belonging to the educational fund of the state. When asked, "How much money did you get from the state of Oregon as deposited by the State Treasurer with the Trust Company?" his answer was, "I never received any money from the state of Oregon." A written demand was made by Steel, as Treasurer, on the Trust Company for the amount of such account on November 12, 1907, service of which was accepted for the Trust Company by defendant Ross, as president. Steel testified that he did the business with the bank, and had no business with defendants; that he might have corresponded with Ross, but thought not; may have talked with him about depositing these funds, after the law took effect, but does not recollect. But the account was segregated, and he says he did have an arrangement or agreement with Burkhart, Ross, Aitchison, or Hill about the manner or arrangement by which these funds would be deposited in the bank, but did not think that Ross knew, at the time, any further than is disclosed by Steel's instructions at the office. He says he probably spoke to him, but does not remember any conversation. The principal dealings were with Ross or Burkhart. He further testifies that, pending the passage of the bill providing for depositories before the Legislature of 1907, he probably consulted with Ross about it, and sent him copies of the bill.

The trial resulted in a verdict against the defendant of guilty, and a finding by the jury that the amount of money converted was $288,426.87. Thereafter defendant moved the court in arrest of judgment on the ground that the information does not state facts sufficient to constitute a crime, and also a motion for a new trial for insufficiency of the evidence to justify the verdict, and errors of law accruing at the trial, which motions were denied. Thereupon judgment was rendered against defendant that he be imprisoned in the penitentiary of the state of Oregon for the term of five years; that he be adjudged to pay a fine in the sum of $576,853.74; that he be imprisoned in the county jail of Multnomah county, Or., until such fine is paid, not exceeding 288,426 days; and that the state recover of and from the defendant its costs and disbursements. From this judgment defendant appeals.

Wallace McCamant, William P. Lord, and William M. Kaiser, for appellant.

Geo. J. Cameron and Martin L. Pipes, for the State.

EAKIN, J. (after stating the facts as above).

The statute (B. & C. Comp.) upon which this prosecution is based provides: "Sec. 1807. If any person shall receive any money whatever for this state *** or shall have in his possession any money whatever belonging to such state *** and shall in any way convert to his own use any portion thereof *** such person shall be deemed guilty of larceny. ***"

The first question for consideration relates to the character of the deposits made by the State Treasurer with the Trust Company, whether they were general or special, and this depends on the terms of the statute of 1907, under which the deposits were made (Laws 1907, p. 248), which took effect May 26, 1907. The portions of the act applicable here are as follows:

"Section 1. It shall be the duty of the State Treasurer, on the first Monday in June of each year, to designate such banks and trust companies within this state, as he may, under the provisions of this act, deem eligible to be made state depositories, for the purpose of receiving on deposit funds of this state, and paying out the same on order or checks of the State Treasurer."

"Sec 3. The State Treasurer shall deposit, and at all times keep on deposit in national banks doing business in the state of Oregon, or other banks and trust companies doing business within this state, as shall have been approved under the provisions of this act as herein provided, the amount of money in his hands belonging to the several funds in the state treasury, and any such bank or trust company may file with the State Treasurer its application for the privilege of keeping on deposit such funds or some part thereof. All such deposits shall be subject to payment when demanded by the State Treasurer on his check, and any bank receiving and holding any such deposit as aforesaid shall be required to pay and shall pay to the state for the privilege of holding the same, interest at the rate prescribed by the State Treasurer as hereinafter provided, which rate of interest shall be not less than two per cent. per annum. ***

"Sec 5. For the security of funds so deposited under the provisions of this act, the State Treasurer shall require all such depositories to deposit securities of the kind and character hereinafter described, or to give bonds for the payment of such...