State v. Sullivan
| Decision Date | 21 March 1924 |
| Docket Number | 18205. |
| Citation | 224 P. 586,129 Wash. 42 |
| Court | Washington Supreme Court |
| Parties | STATE v. SULLIVAN. |
Department 1.
Appeal from Superior Court, King County; Ralston, Judge.
A. C Sullivan was convicted of embezzlement, and he appeals. Affirmed.
John F Dore, of Seattle, for appellant.
Malcolm Douglas, Bert C. Ross, and Chester A. Batchelor, all of Seattle, for the State.
The assignments of error urged by appellant are that (1) the court erred in denying his motion for a new trial, (2) erred in the admission of testimony, and (3) erred in refusing to give the instructions requested by appellant.
The first contention relied upon by appellant is that the evidence did not sustain a conviction for embezzlement. It is asserted that appellant took the check for the money alleged to have been converted to his principal, his principal cashed the check and gave appellant the money; that the money was wrongfully and illegally given to him by his principal; that it was not given to him for any specific purpose, and that the delivery to him was contrary to law; that when appellant through accident came into possession of the check it was not cashed for a period of nine months after its issuance, and that the proper thing to do with the check was to deliver it to the city treasurer; that the indorsement on the check, 'A. C. Sullivan, Secretary,' was unnecessary, and was an invalid indorsement; that when Sullivan took the check to the city treasurer it was the duty of the city treasurer to retain the same.
These assertions rest partially upon assumptions which are not justified. Sullivan was secretary to the police department of the city of Seattle. The city treasurer was not his principal. It is true the city treasurer had no right to cash the check and give appellant the money; and it is also true that appellant had no authority to receive the money from the treasurer. But appellant was the agent, servant, employee, and trustee of the city, and it made no difference whether he was such in relation to this particular fund or not. He got the check into his hands in some way, which was a check from the United States government for the payment of care of seaman, P. H. S. (Public Health Service), as shown on its face. It had no relation to the police department of Seattle, and any one receiving it into his possession in whatsoever manner would instantly know that fact from the face of the check. But however he received the check, he received the proceeds thereof as a servant, agent, employee, or trustee of the city. The city was his principal, and not the city treasurer. The information alleges and the proofs tended to sustain the allegation that, having received the money on the check, 'he then and there willfully, unlawfully, fraudulently, and feloniously did secrete, withhold, and appropriate the same to his own use with intent to deprive and defraud the city.'
The evidence shows that on June 4, 1919, the check was drawn by the United States Treasurer, payable to the city of Seattle, in the sum of $595. It bore on its face plainly printed and typewritten letters:
'Object for which drawn care of seamen, &c., P. H. S.'
The department of public health and police department were located in the same building. Appellant from 1906 to June, 1922, was secretary of police. The check came into his possession presumably through a mistake in delivery by the mail carrier. On April 5, 1920, nine months after issuance, appellant took the check to the city treasurer's office, and secured from a deputy in the office the proceeds of the check. The treasurer deposited the check in a bank, and in due course of time it was honored and paid by the United States Treasurer. When received back the check bore the indorsement of the city treasurer and the indorsement of Sullivan, as follows: 'City of Seattle, A. C. Sullivan, Secretary.' In December, 1921, one year and eight months later, the state public examiners, checking over the accounts of the public health department of Seattle, found the bill for which the above check was given. Upon making inquiry as to why it had not been collected, a letter was received from Washington to the effect that the bill had been paid by the above check, which bore the above indorsements. This letter was received early in February, 1922. Upon its receipt the chief clerk and secretary of the city health department took the letter to appellant and asked him to credit the city health department with the amount of the check. Appellant said he would look it up. From time to time thereafter until June, 1922, the health department called the matter to the attention of appellant, who did nothing towards straightening the matter up, or making an explanation thereof. On June 17, 1922, at a meeting in the office of the chief of police, the Assistant Attorney General of the state showed the check to appellant, and asked him what he knew about it. Appellant replied that he had cashed the check, and that he must have gotten his accounts mixed up, and must have thought this money was coming to him from the Government. He verbally offered to pay the money, but the Assistant Attorney General told him that 'if he thought he was in the clear and could go over his record and find that this money was due and owing to him he would be given a chance to do that before anything further was done.' A week's time was thereupon agreed upon. On June 20, three days later, appellant paid into the city treasury the sum of $595.
In his own behalf appellant testified, admitting the cashing of the check, but denying any intent to deprive or defraud the city. He testified that he cashed the check by mistake, thinking it was money owing to him from the government on account of his dealing with the government in the purchase of army stores for which he acted as an accommodation agent for city employees, by permission of the city. He denied any conversion of the money, and claimed that all of the moneys received by him were put in a city safe in his office, and that when he repaid the money he merely took it from a compartment in that safe. He testified also that during the period of about one year he bought from the government army groceries and supplies for city employees. He had had numerous adjustments to make, and at times had received rebates for goods; that he had no books of account showing any receipts or disbursements, and kept no books. After he left the office of secretary of police a few days subsequent to his payment of the $595 to the city treasurer, there was found in the safe in the office of the secretary of police the sum of $1,493.75, which aggregated the receipts of appellant for gun permits issued by the police department covering a period of several years. Appellant testified that this had not been paid to the city treasurer because of a dispute as to its disposition.
In rebuttal the state called a Mr. Goran, an attorney who testified that in September, 1922, appellant told him that the Dehydrated Fruit Company had furnished the money with which appellant had squared his accounts at the police station.
Appellant admitted receiving the check. His retention and concealment of it for a period of nine months warrant the inference that his opportunities during that time must have been ample to have discovered and made certain whether or not this money was due him from the government upon any matter concerning his dealings in army goods stores before presentation of the check. His retention of the funds after cashing the check for a period of a year and eight months also was apparently ample time for him to have discovered whether the funds rightfully belonged to him or not. These were circumstances sufficient to warrant the jury in finding that he wrongfully and illegally received the money and converted it to his own use with intent to deprive and defraud the owner thereof, the city of Seattle.
The information was framed so that either of two statutes could be relied upon, section 2569, Rem. Comp. Stat., relating to misappropriation by a public officer, and section 2601, subd. 3, defining the crime of larceny by embezzlement.
The larceny by embezzlement statute is:
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...review of the propriety of giving the instruction, merely stating "[t]his language is used in the court's opinion in State v. Sullivan, 129 Wash. 42, 51, 224 P. 586 (1924). We deem it appropriate in the instant case, for it is germane to a determination of defendant's intent on the evening ......
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