State v. Serkau

• Decision Date: 26 June 1941
• Citation: 20 A.2d 725
• Court: Connecticut Supreme Court
• Parties: STATE v. SERKAU.

20 A.2d 725

STATE

v. SERKAU.

Supreme Court of Errors of Connecticut.

June 26, 1941.

Appeal from Superior Court, Fairfield County; King, Judge.

Gabriel Serkau was convicted in the Superior Court in Fairfield County on trial to the court, of embezzlement, and he appeals.

No error as to the first count; error as to the second, third and fourth counts, and a new trial ordered as to them.

Argued before MALTBIE, C. J., and AVERY, BROWN, JENNINGS, and ELLS, JJ.

Max Spelke and Frank Rich, both of Stamford (Joseph P. Zone, of Stamford, on the brief), for appellant.

Lorin Willis, State's Atty., of Bridgeport (Otto J. Saur, Asst. State's Atty, of Bridgeport, on the brief), for appellee.

JENNINGS, Judge.

The assignment that the court erred in finding the defendant guilty of the crime charged upon all of the evidence makes it unnecessary to consider the detailed changes requested in the finding. State v. MacCullough, 115 Conn. 306, 307, 161 A. 512. The basic questions raised are whether the court had jurisdiction and whether, on all the evidence, the accused was guilty as charged. The court could reasonably have found the following facts: Mrs. Maud P. Cahill was a widow about sixty-five years of age, without business experience, and lived alone in Stamford. She owned American Telephone & Telegraph Company bonds of the par value of $5,000 and mortgages and notes of the face value of $18,100, all of which she kept in a safety deposit box at her bank. The defendant and his wife lived near her. An acquaintance starting in December, 1938, ripened into friendship and these people frequently visited and dined at each other's houses. In the fall of 1939, Mrs. Cahill started discussing her investments with the Serkaus. The defendant told her of the money he was making and his interest in the platinum business and other enterprises in New York and Canada. He also told her that he was a lawyer. He expressed disapproval of her investments and said he would like to look over her mortgages and that if she would put her trust in him, he would try to improve her financial situation.

In pursuance of this understanding, the defendant drove Mrs. Cahill to her bank on December 16, 1939. While he waited in the lobby, she got her securities from the vault and brought them to him. He looked them over, returned two mortgages, gave her a receipt for the rest and told her he would hold them and investigate them for her. Two days later he sold the bonds for $5,474.30 and with this as an initial deposit, opened an account in his own name in the Chemical Bank & Trust Company in New York City. Within the next three weeks he checked out practically this entire amount. On December 19, 1939, he started trying to sell the mortgages. On January 8, 1940, the defendant brought attorney George Wise of Stamford and the latter's secretary to Mrs. Cahill's home. Wise had prepared assignments of mortgage and estoppel certificates. The defendant told her that it was necessary that she sign these papers so that he, the defendant, could dispose of her mortgages and that he would invest the proceeds in his business. Wise explained that the effect of the documents was to transfer the mortgages to the defendant. Mrs. Cahill signed the documents relying on these assurances. Shortly after this transaction the defendant sold three of the mortgages to Wise for an aggregate sum of $8,700. This amount was deposited in the same New York account and used by him within a short time. While a substantial part of the sums thus realized by the defendant were withdrawn by checks payable to a corporation apparently controlled by him, the court was justified in finding that these payments were for his personal use in the absence of any explanation offered by him.

On January 2, 1940, the defendant gave Mrs. Cahill a note for $23,500 payable two years after date with 6 per cent interest and asked her to destroy the receipt he had given her. She did destroy it soon afterwards. The defendant promised Mrs. Cahill 6 per cent interest and a $50 bonus on the first of each month and told her he was going to invest the money in his business. This bonus was paid by him and accepted by her on the first of February, March and April. No interest was ever paid by him nor were any of the proceeds of her securities invested by him on her behalf. On the contrary, they have been used by him for his own purposes. She has demanded her money or her securities but has nothing to show for them except the defendant's unsecured promissory note. On April 12, without notice, she instituted criminal and civil proceedings against the defendant. The defendant did not take the stand.

The question of jurisdiction was not raised at the trial but, by exception to the general rule, may be raised at any time. Conn.App.Proc. § 32, Rindge v. Holbrook, 111 Conn. 72, 75, 149 A. 231. It turns on the admitted fact that the proceeds of the bonds and mortgages were deposited in New York. For reasons which appear, the question as to the mortgages, as pertains to this point, is not discussed. The bonds were received in Stamford, sold in New York and the proceeds deposited in New York and cheeked out by checks bearing the New York date line. The general rule is that some act of conversion must take place within the jurisdiction. Rogers v. State, 14 Okl.Cr. 235, 170 P. 269, L.R.A. 1918E, 744; 2 Wharton, Criminal Law, 12th Ed, § 1309. Since, however, an embezzlement may extend over a considerable time and different acts may take place in several jurisdictions, it has been held that the defendant may be tried in any place where any part of the embezzlement was committed. Wharton, Id. § 1289. The court could reasonably conclude that there was a taking in Connecticut, with intent to embezzle, in view of the fact that the defendant told Mrs. Cahill that he was taking the securities for investigation, that he sold the bonds two days later and almost immediately used the proceeds to pay his personal bills. People v. Murphy, 51 Cal. 376, 379; People v. Gordon, 133 Cal. 328, 331, 65 P. 746, 85 Am.St.Rep. 174, 177; State v. Sullivan, 49 La.Ann. 197, 21 So. 688, 62 Am.St.Rep. 644; 16 C.J. 189; 22 C.J.S, Criminal Law, 283, § 185. The court had jurisdiction of the first count. The defendant further claims that he was not proven guilty beyond a reasonable doubt because the relationship between him and Mrs. Cahill was that of debtor and creditor rather than that of principal and agent. The answer to these claims depends on the application of the definition of embezzlement to the facts of the case. The statutory definition is as follows: "Embezzlement by agent. Any * * * agent * * * of any * * * private individual, who shall take, purloin or secrete, or in any way appropriate to his own...