State v. Siers

• Decision Date: 17 November 1976
• Docket Number: No. 40480,40480
• Citation: 248 N.W.2d 1,197 Neb. 51
• Parties: STATE of Nebraska, Appellee, v. George J. SIERS, Appellant.
• Court: Nebraska Supreme Court

Page 1

248 N.W.2d 1

197 Neb. 51

STATE of Nebraska, Appellee, v. George J. SIERS, Appellant.

No. 40480.

Supreme Court of Nebraska.

Nov. 17, 1976.

Syllabus by the Court

1. To render a failure to give an instruction prejudicially erroneous, it is not sufficient that correct abstract propositions of law are thereby embodied. In addition, such proposition must be applicable to the facts.

2. Error may not be predicated on the refusal to give an instruction which either erroneously or only partially covers the applicable law.

3. Under both statutory and case law in Nebraska, a partnership has long been considered as an entity separate and apart from the individual partners.

4. In Nebraska, both by statutory interpretation and by our adoption of the legal entity theory of partnerships, a partner may be prosecuted for the embezzlement of partnership property.

5. Where an instruction is technically correct, and is couched in terms which in the opinion of a party are liable to be

misunderstood or misapplied by the jury, it is the party's duty to call the court's attention to the supposed defect and present a suitable instruction.

6. Evidence of other crimes, similar to that charged, is relevant and admissible when it tends to prove a particular criminal intent which is necessary to constitute the crime charged or where there is some legal connection between the two upon which it can be said that one tends to establish the other or some essential fact in issue.

7. Proof of the existence of a legal entity capable of owning property is not required in an embezzlement prosecution.

8. The name of the owner of property stolen is material only to the extent it serves a descriptive purpose. Also it is to show it was not the property of the accused, and that the accused may know whose property he is alleged to have solen so that he may be prepared to meet or refute the charge at the trial. And, where the identity of the alleged owner is sufficiently established and the defendant is not deceived or misled to his prejudice, no error results.

9. This court on appeal will not overturn an order or sentence of the trial court which denies probation unless there has been an abuse of discretion.

10. In criminal cases, alleged errors of the trial court not referred to in the motion for a new trial will not be considered on appeal.

William K. Schaphorst, Robert J. Becker, of Swarr, May, Smith & Anderson, Omaha, for appellant.

Paul J. Douglas, Atty. Gen., Jerold V. Fennell, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

SPENCER, Justice.

Defendant, George J. Siers, appeals from a judgment entered upon a verdict of the jury finding him guilty of embezzlement. A sentence of not less than 1 nor more than 3 years in the Nebraska Penal and Correctional Complex was imposed. Defendant lists nine assignments of error which will be enumerated as they are discussed. We affirm.

The information under which Siers was charged and tried alleges, so far as material herein, that between the dates of August 3, 1974, and April 7, 1975, inclusive, 'George J. Siers * * *, being then and there the agent of Pathfinder II Ltd., a limited partnership, * * * did then and there by virtue of such position * * * as agent of the said Pathfinder II Ltd., a limited partnership, receive and take into his possession certain money * * * all of which money was and is the property of * * * his principal, and did then and there fraudulently and unlawfully convert to his own use and embezzle said money, without the consent of the said Pathfinder II Ltd., a limited partnership, his principal, * * *.'

The salient facts of this case, so far as material to this appeal, are that Siers and Enlowe A. Hevner, both having had experience as commodity brokers, in 1973 formed a general partnership, Pathfinder II, to trade in commodities and commodity futures. The bookkeeping and accounting was done primarily by Siers, although Hevner also had complete authority and access to the books. Both Siers and Hevner traded through the Pathfinder II account. Sometime later, they conceived the idea of operating limited partnerships in connection with their business for the purpose of trading in commodities, the apparent advantages being the limited liability of limited partners and greater flexibility in operation. With that in mind, in February 1974, Siers set up a small limited partnership with five investors, under the name of Prospector II. All the trading for that and another limited partnership was done through an account opened in the name of one of its investors, Rick Murphy, who was Siers' brother-in-law. Although probably illegal according to the evidence adduced at the trial, Siers did trade through Rick Murphy's account and explained the advantages of so doing on the basis of a reduction in paper work, and in margin requirements. Siers conceded that the effect of this procedure was that Murphy would legally have title to all the assets, including profits from trading, and was also liable for losses sustained by the account. Investors in the limited partnerships were not able to determine if they had made or lost money on the orders Siers placed for them, as the account statements all went to Murphy, and in effect, to Siers, who shared the Murphy account mailing address.

Plans for the formation of Pathfinder II, Ltd., grew out of discussions between Hevner and Mr. Donald M. Vervaecke. Both Hevner and Vervaecke testified that Hevner was to be the trading agent and that the general partner of the limited partnership had not been determined. Hevner never considered himself a limited partner. Both Hevner and Vervaecke testified that it was their understanding and agreement that before Pathfinder II, Ltd., was to come into existence and commence trading operations, it was necessary to obtain 10 limited partners, each of whom would invest $2,500. Hevner was to assist Vervaecke in finding investors to round out the total of the 10 limited partners, but, according to his testimony was unsuccessful. Siers, on the other hand, testified that when he and Vervaecke discussed the limited partnership, the agreement was that 10 limited partners was the Maximum number that could participate, but that Pathfinder II, Ltd., could function with fewer limited partners. He also stated that he was to be the trading agent for the limited partnership.

The evidence indicates that Vervaecke sold seven $2,500 shares in Pathfinder II, Ltd., to prospective investors, and turned the money totalling $17,500, over to Siers. This money was in the form of checks drawn by the prospective limited partners, which, according to evidence in the record, at the suggestion of Siers were made payable to Pathfinder II. The payment for the shares took place between August 2 to August 8, 1974, and the money was deposited in the Pathfinder II account. Vervaecke and Hevner both testified that Siers told them the money would be held in an escrow account until the limited partnership was formed. Siers denied this, saying that the discussion with reference to an escrow account was in connection with another venture, Pathfinder Commodities Fund.

A great amount of conflicting testimony about the creation or existence of the Pathfinder II, Ltd., entity was adduced at the trial. Vervaecke believed that 10 investors were required and the trading could not begin without notice to the investors. Michael McCormack, who was one of the Pathfinder II, Ltd., investors, and the individual who filed the embezzlement complaint against Siers, testified to the same effect. Siers denied the 10 investor requirement, but further testified that he had found two investors on or about August 10, 1974, Who, in addition to himself, constituted the 10 investors, and at that point he was entitled to commence trading without notice to any of the investors. He produced as his defense witnesses two individuals who testified that they had invested in the venture.

During the trial exhibit 4, a purported limited partnership agreement of Pathfinder II, Ltd., containing signatures of six of the partners, was offered and received in evidence. Neither Mrs. Vervaecke, who was to be a partner, nor Michael McCormack signed the partnership agreement. The agreement was on a form prepared and used by Siers for forming his limited partnerships, and contained blanks which needed only to be filled in with pertinent data. There is evidence in the record that at the time the signatures were affixed to the form, it was a blank form. The name of the limited partnership and the date, now appearing on the form, were added later. The agreement itself, exhibit 4, does not require that 10 limited partners join in the venture; and it gives the general partner, designated as Pathfinder II, the power to 'act unilaterally as his best judgment deems.'

The record reveals that Vervaecke became alarmed when Buckmaster, one of the limited partners, mentioned that he had received a statement showing a profit for Pathfinder II, Ltd., for the month of September. McCormack also received statements showing small profits. Vervaecke did not receive any such statements. Vervaecke met with Hevner and Siers and inquired how the entity could turn a profit if it was unable to trade. He testified that Siers replied he had not traded and that the statements were just to hold the limited partners' interest. Hevner's testimony corrobrated this. Siers denied this. He stated he had admitted trading in the Rick Murphy account, but had assured Hevner and Vervaecke that he would not do so again.

The State suggests and argues that the following occurred with regard to the $17,500 invested by the Vervaecke group. As previously stated, the money was paid to Siers in early August 1974, by check or checks payable to Pathfinder II, not Pathfinder II, Ltd. The funds were placed in the Pathfinder II bank account,...