State v. Tauscher

• Decision Date: 12 April 1961
• Citation: 360 P.2d 764,88 A.L.R.2d 674,227 Or. 1
• Parties: , 88 A.L.R.2d 674 STATE of Oregon, Appellant, v. Alicia Irene TAUSCHER, Respondent.
• Court: Oregon Supreme Court

Page 764

360 P.2d 764

227 Or. 1, 88 A.L.R.2d 674

STATE of Oregon, Appellant, v. Alicia Irene TAUSCHER, Respondent.

Supreme Court of Oregon, Department 2.

Argued and Submitted Jan. 18, 1961.

Decided April 12, 1961.

Avery W. Thompson, Dist. Atty., Douglas County, Roseburg, argued the cause and submitted briefs for appellant.

Randolph Slocum, Roseburg, argued the cause for respondent. On the brief were Horn & Slocum, Roseburg.

Before McALLISTER, C. J., and WARNER, SLOAN, O'CONNELL and LUSK, JJ.

O'CONNELL, Justice.

The defendant was indicted for the crime of embezzlement. The lower court sustained a demurrer to the indictment and the plaintiff appeals.

Defendant was the executive secretary of the Douglas County Tuberculosis & Health Association, a corporation. Defendant and a Mrs. Petrequin were authorized to draw checks upon the Association's bank account. The signatures of both were necessary in order to draw upon the account. It was the practice of Mrs. Petrequin to sign several checks in blank and to turn them over to defendant for use in paying the bills of the Association. Over an extended period defendant used some of these checks to pay her private electric bills with the California-Oregon Power Company.

The indictment described the alleged crime as follows:

'Alicia Irene Tauscher is accused by the Grand Jury for the County of Douglas, State of Oregon, by this Indictment of the crime of Embezzlement committed as follows:

'The said Alicia Irene Tauscher between the approximate dates of March 23, 1957 and April 22, 1959, in the said County of Douglas and State of Oregon, then and there being, and then and there being the agent and executive secretary of the Douglas County Tuberculosis & Health Association, a corporation, did then and there embezzle and fraudulently convert to her own use as parts of a systematic plan of peculation certain money, property or thing described as credits or deposits belonging to the said Douglas County Tuberculosis & Health Association whereby the United States National Bank of Portland, Oregon, Roseburg Branch, was the debtor or depository by improperly making and drawing checks on or against the said credits or deposits payable to the California Oregon Power Company, a corporation, in payment of an obligation due by the said Alicia Irene Tauscher to the said California Oregon Power Company and in excess of any proper or authorized amount owed and payable by the Douglas County Tuberculosis & Health Association to the California Oregon Power Company, which said excessive amount was and is the sum of $386.05, contrary to the statutes in such cases made and provided and against the peace and dignity of the State of Oregon.'

In sustaining the demurrer the trial court's order recited that the indictment failed to state facts sufficient to constitute the crime of embezzlement 'for the reason that it fails to allege that the defendant embezzled or fraudulently converted property within the meaning of the larceny statute (ORS 164.310) as required by law * * *.'

It was further ordered that 'the indictment be resubmitted to the grand jury of Douglas county for reconsideration and correction of the defect, if such can be accomplished under the law.'

The state elected to stand upon the indictment as it was originally returned, whereupon the court entered judgment on the demurrer.

It seems apparent that the indictment was framed with the purpose of charging the defendant with the crime of embezzlement under ORS 165.005, which reads as follows:

'Any officer, agent, clerk, employe or servant of any person, partnership, association or any guardian, conservator, administrator or executor of any estate, any assignee for the benefit of creditors, or trustee or any other person acting as fiduciary who embezzles or fradulently converts to his own use, or takes or secretes with intent to embezzle or fraudulently convert to his own use, any money, property or thing belonging wholly or in part to such person, partnership, association, estate, creditors or debtor, which is property within the meaning of ORS 164.310 and has come into his possession or is under his care by virtue of his employment or appointment, whether or not he has any interest, divisible or indivisible, in such property, shall be deemed guilty of larceny and shall be punished as provided in ORS 164.310. The fact that such officer, agent, clerk, employe, servant, guardian, conservator, administrator, executor or assignee for the benefit of creditors, trustee or any other person acting as fiduciary has mixed such property with the money, property or thing of another person, partnership, association or estate shall not constitute a defense in a prosecution under this section.'

It will be observed that ORS 165.005 refers to ORS 164.310, the larceny statute, for the definition of 'property' which may be the subject of embezzlement and for the punishment to be imposed for the offense of embezzlement.

ORS 164.310 reads as follows:

'(1) Any person who steals the property of another, or who wilfully takes, carries, leads or drives away the property of another with the intent to deprive such other of such property permanently, is guilty of larceny; and

'(a) If such property exceeds $75 in value, shall be punished upon conviction by imprisonment in the penitentiary for not more than 10 years.

'(b) If such property does not exceed $75 in value, shall be punished upon conviction by imprisonment in the county jail for not more than one year, or by a fine of not more than $500, or both.

'(2) As used in subsection (1) of this section 'property' means any real or personal property, including but not limited to:

'(a) Any goods or chattels.

'(b) Any government note, bank note, coin, money, promissory note, bill of exchange, bond or other thing in action.

'(c) Any book of accounts or order or certificate concerning money due or to become due or goods to be delivered.

'(d) Any deed or writing containing a conveyance of land or any interest therein.

'(e) Any bill of sale or writing containing a conveyance of goods or chattels, or any interest therein.

'(f) Any valuable contract in force.

'(g) Any receipt, release, or defeasance.

'(h) Any writ, process, or public record.

'(i) Any railroad, railway, steamboat or steamship passenger ticket or other evidence of the right of a passenger to transportation.'

On appeal the state contends that although the facts recited in the indictment may not be sufficient to make out a case of embezzlement under ORS 165.005, the indictment is sufficient to charge the defendant with the crime of larceny.

The caption of the indictment describes the crime as 'embezzlement.' It is true, as the state contends, that an indictment may be good in spite of the error in designating the offense in the caption. State v. Elkins, 1959, 216 Or. 509, 339 P.2d 715.

But, as we stated in the latter case:

'* * * This assumes, of course, that the charging part of the indictment so clearly alleges facts constituting a crime that the defendants would not reasonably be confused by the erroneous designation * * * [citing cases].' 216 Or. at page 512, 339 P.2d at page 717.

In the case at bar both the caption and the charging part of the indictment designate the crime of embezzlement. As we said in State v. Wilcox, 1959, 216 Or. 110, 116, 337 P.2d 797, 799, '[a]lthough the use in an indictment of the name of a particular crime is not controlling of itself, Ex parte Harrison, 1940, 55 Ariz. 347, 101 P.2d 457, it is a proper factor to consider, for 'the meaning is to be determined from the whole instrument * * *' in determining whether the accusation made against the defendant has been set out with sufficient certainty to satisfy the requirements of ORS 132.530 and ORS 132.540. State v. Jennings, 1929, 131 Or. 455, 461, 282 P. 560, 562.'

The indictment in the case at bar obviously was drafted in terms of ORS 165.005, the embezzlement statute, and not in terms of ORS 164.310, the larceny statute. It alleges in the terms of ORS 165.005 that the defendant was an 'agent'; that she did 'embezzle and fraudulently convert' certain 'money, property or thing.' The indictment does not charge, as is essential for the crime of larceny under ORS 164.310, that defendant stole, took, or carried away the property of another.

We hold that the indictment is insufficient to charge the crime of larceny.

We shall next consider whether the indictment is sufficient to charge the crime of embezzlement. The trial court sustained the demurrer to the indictment on the ground that the 'credits or deposits' which she is charged with embezzling were not 'property' within the meaning of ORS 164.310, the source of the definition of 'property' subject to embezzlement under ORS 165.005.

The checks which were employed as the vehicle for the misappropriations were signed by defendant and another, both as authorized co-signers. Thus the drawee bank was entitled to charge the Association's account for the checks which it honored and paid. Consequently, there is no doubt that defendant deprived the Association of a valuable monetary interest. But the crime of embezzlement is not made out simply by proving the defendant acquired property which was owned by her victim. Our criminal code contains a whole congeries of separate crimes having as their common ingredient the acquisition of another person's property. However, each of these crimes has distinguishing statutory features which must be observed by the courts; and the distinctions must be observed even though we may regard them as anachronistic and archaic. Our criminal code preserves many of these distinctions just as, in many instances, it perpetuates in statutory form the common law definitions of particular crimes. Among the crimes so codified are three closely related crimes which are sometimes collectively referred to as the crime of theft, viz., larceny, embezzlement and obtaining property by...