State v. Schofield

• Decision Date: 08 March 1932
• Citation: State v. Schofield, 114 Conn. 456, 159 A. 285 (Conn. 1932)
• Court: Connecticut Supreme Court
• Parties: STATE v. SCHOFIELD.

159 A. 285

114 Conn. 456

STATE v. SCHOFIELD.

Supreme Court of Errors of Connecticut.

March 8, 1932

Appeal from Superior Court, New Haven County; Frederick M. Peasley Judge.

Joseph S. Schofield was convicted of embezzlement, and he appeals.

Error and case remanded, with directions.

William W. Gager, Public Defender, of Waterbury, for appellant.

William B. Fitzgerald, Asst. State's Atty., and Lawrence L Lewis, State's Atty., both of Waterbury, for the State.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY, JJ.

HAINES, J.

Both counts upon which the defendant was convicted rest upon the provisions of General Statutes, § 6517, Revision 1918(now section 6365, Revision 1930), the applicable portions thereof being that " every *** broker, and every agent *** who shall take, purloin, secrete, or in any way appropriate to his own use *** any of the goods, moneys, choses in action or property in his care or custody as such *** broker, agent *** or any moneys received by him for the sale of such *** choses in action or property *** with intent to defraud another *** shall be fined. ***"

The specific offense charged in the first count is that on or about the 19th day of November, 1929, the defendant" being then and there a stockbroker and agent of Doctor L. L. Weinberg *** did then and there unlawfully and wrongfully sell one hundred shares of New York Title and Mortgage Company, which said stock had been deposited with said Schofield as such broker and agent as security for balance due said broker and agent from said Doctor L. L. Weinberg *** and received therefor the sum of $4,000, and did then and there unlawfully and wrongfully take, secrete and appropriate said sum of $4000 and said one hundred shares of stock *** so held by said Schofield as security, to his own use, with intent then and there to defraud him the said Doctor L. L. Weinberg," *** and, in the second count, that about the 15th of October, 1929, the defendant" acting in the capacity of agent and broker received an order from William Brown *** directing him as such broker to purchase two hundred shares of Railroad Shares Corporation *** for *** $2,462.50.Said Schofield as such broker received said sum from said Brown but failed and neglected to fill the order and deliver to said Brown said one hundred shares *** but converted and appropriated said sum of $2,462.50 lawful money of the United States to his own use with intent to defraud said William Brown. ***"

The state's evidence under the first count was confined to a certain specified certificate C 1198 for one hundred shares of the stock of the New York Title & Mortgage Company alleged to belong to L. L. Weinberg and the proceeds thereof, and the second count to a sum of $2,462.50 lawful money of the United States alleged to belong to William Brown, as being the subjects of embezzlement.Under this statute, the essentials of proof are four in number: (1) Agency of the defendant, (2) the receipt of the stock and the money, (3) the conversion or appropriation thereof to his own use, and (4) his felonious intent to defraud Weinberg and Brown.State v. Henderson,102 Conn. 658, 660, 129 A. 724.The evidence necessary for a conviction under this statute must satisfy the trier beyond a reasonable doubt of the truth of the specific charges made in the information.If there be reasonably deducible from the evidence any conclusion consistent with innocence, the requisite proof of the crime must fail.State v. Guilfoyle,109 Conn. 124, 129, 145 A. 761.

The numerous assignments of error are predicated upon denials of requested changes in the finding-upon certain conclusions reached by the trial court and the overruling of certain claims of law made by the defendant.The last two assignments are identical in character and language, each having reference to one of the two counts in the information.They challenge the decision of the trial court" that the evidence was sufficient to establish and did establish and prove the defendant's guilt *** beyond a reasonable doubt."

Where a question of this character is to be passed upon in a case tried to a jury the accused moves the trial court to set aside the verdict and assigns the denial of this motion as a ground of appeal.Where, as now permitted by legislative enactment, an accused elects to be tried by the court rather than by a jury, the same right to challenge the legal sufficiency of the entire evidence is accorded him by simply assigning this as a reason of appeal.State v. Frost,105 Conn. 326, 331, 332, 135 A. 446.

The comprehensive character of these two grounds of appeal is such that an adequate consideration of them with the entire evidence before us will render a detailed treatment of the particular claims for changes in the finding unnecessary.State v. Guilfoyle, supra, 109 Conn. 139, 145 A. 761;State v. Frost, supra, 105 Conn. 332, 333, 135 A. 446.The evidence submitted was considerable in volume and some of it complicated and technical in character.A careful study of all of it, however, discloses surprisingly few contradictions upon the essential subordinate facts.The oral evidence and the written records and papers in evidence, show that in 1929, and on the dates mentioned in the information, the defendant in his own name and as J. S. Schofield & Co., with offices at Waterbury, was conducting a business commonly, though perhaps not with strict legal accuracy, known as that of an investment broker.The entire charge and control of the office details and of the books and records was in the hands of an office manager; there were two or three stenographers and clerks and a considerable number of outside salesmen, at one time sixteen, actively engaged in the sale of securities being marketed by the defendant.Up to the time of the general financial crash in the fall of that year, the defendant was carrying on a business of considerable magnitude.Some time between November 11th and 14th the banking department of the state took possession of the defendant's office, books, and papers, and on November 21st the bank commissioner obtained an injunction forbidding the defendant from the further prosecution of his business in this state.Late in November the defendant filed a voluntary petition in bankruptcy.

Among the many securities handled by the defendant were two stock issues, the shares of the New York Title & Mortgage Company and those of the Railroad Shares Corporation.The placing of the former was being directed by a New York concern known as the Investors' Bankstocks Corporation, of which corporation the defendant was a direct representative in Waterbury and vicinity.The defendant's offices were directly connected by wire with the New York corporation offices, were directly connected by wire with the New York corporation offices, a teletype machine being used for frequent communication.The stock was forwarded from the New York office to the office of the defendant from time to time as requested by the defendant and was sold by him and his salesmen at a figure fixed by the Investors' Bankstocks Corporation, and without payment by the individual buyer of a commission or other profit to the defendant.We shall later consider the handling of the Railroad Shares Corporation stock.

To the time his business was closed up by the injunction, the defendant had received from the Investors' Bankstocks Corporation four hundred and thirty shares of the stock of the New York Title & Mortgage Company.Of this total he had sold to customers, including Weinberg, two hundred and five shares, but of this amount Weinberg's order for one hundred shares and that of Irving Pasternak for ten shares had not been filled, so the defendant had on hand in his office three hundred and thirty-five shares of the stock, and all this was represented by certificates in " street form," that is, negotiable, passing from hand to hand as occasion required and not marked as the property of any specific person.They bore no name of any customer of the defendant and were in no way definitely allocated to or earmarked for any customer.In making delivery to fill a customer's order, any certificate of the correct denomination was used.All these shares, and some other securities in the possession of the defendant, had been posted as collateral...