Williams v. State

• Decision Date: 01 November 1961
• Docket Number: No. A-13039,A-13039
• Citation: Williams v. State, 365 P.2d 569, 1961 OK CR 111 (Okla. Crim. App. 1961)
• Parties: Robert L. WILLIAMS, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 569

365 P.2d 569

Robert L. WILLIAMS, Plaintiff in Error, v.STATE of Oklahoma, Defendant in Error.

No. A-13039.

Court of Criminal Appeals of Oklahoma.

Nov. 1, 1961.

Rehearing Denied Nov. 29, 1961.

Syllabus by the Court.

1.In prosecution for embezzlement where defendant failed to comply with a contract or duty to account for funds, which he held in trust for insurance company, venue will lie in the county where defendant was under obligation to account for the funds.

2.An information may be amended in matter of substance or form at any time before the defendant pleads, without leave, and may be amended after plea on order of the court where the same can be done without material prejudice to the right of defendant; no amendment shall cause any delay of the trial unless for good cause shown by affidavit.(22 Okl.St.Ann. § 304).

3.The precise time at which the offense was committed need not be stated in the indictment or information; but it may be alleged to have been committed at any time before the finding thereof, except where the time is a material ingredient in the offense.(22 Okl.St.Ann. § 405).

4.Where an amendment to the information was allowed by the court after state had rested, changing date of alleged crime from September 10 to September 19, and the change conforms with the testimony and does not appear prejudicial to the rights of defendant, error was not committed.

An appeal from the District Court of Oklahoma County; Fred Daugherty, Trial Judge.

Plaintiff in error, Robert L. Williams, was convicted of the crime of embezzlement and appeals.Affirmed.

E. E. 'Ike' Zamrzla, Robert G. Grove, Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

NIX, Presiding Judge.

Robert L. Williams, hereinafter referred to as the defendant, was charged by information in the district court of Oklahoma County with the crime of embezzlement.He was tried before a jury who found the defendant guilty and left his punishment to be assessed by the court.The trial judge sentenced the defendant to serve three years in the Oklahoma State Penitentiary.

The charging part of the information upon which the defendant was tried read as follows:

'* * * Robert L. Williams, whose more full and correct name is to your informant unknown, then and there being, did then and there wilfully, unlawfully and feloniously commit the crime of Embezzlement in the manner and form as follows, to-wit:

'That is to say, the said defendant, in the county and state aforesaid, and on the day and year aforesaid, then and there being, was then and there entrusted as salesman with $356.70 good and lawful money of the United States of America, and the personal property of Reserve National Insurance Company, and the said defendant while in possession of the said money did unlawfully, wilfully, wrongfully, fraudulently, and feloniously, take, steal and appropriate, convert and embezzle said money to defendant's own use and benefit and in a manner and for a purpose inconsistent and contrary to and not in accordance with the trust, imposed in said defendant as such salesman by the Reserve National Insurance Company, with the unlawful, wrongful, fraudulent and felonious intent to cheat, wrong and defraud the said rightful owner thereof and to appropriate the said $356.70 to defendant's own use and benefit and to permanently deprive the said rightful owner thereof; * * *.'

Defendant appeals to this court upon two assignments of error.First, that the court erred in refusing to sustain the demurrer offered by the defendant and a motion to dismiss for lack of venue; and secondly, that the court erred in permitting the state to amend the information after defendant had testified, and over the objection of defendant.

The testimony established at the trial showed defendant had entered into a contract with Reserve National Insurance Company as an agent engaged in soliciting applications for insurance.Agent was to receive a commission and renewal commissions upon the policies sold by him.Reserve National Insurance Company was located at 418 NW 5th street in Oklahoma City.Under the contract agent was to solicit applications and forward to the company for approval or rejection and to collect the initial premium.The contract provided that all money and securities received by the agent as full or partial payment of first year or renewal premium '* * * shall be held in trust for the company and immediately delivered to the company'.It further provided that the Agency should not make any personal or other use of said money or intermingle with his personal or other funds.

The president of the company, Mr. John Gammill, testified that Agent was instructed to turn in the premiums collected at the home office immediately as he would write a policy, but if Agent was out of town he turned in the money each Saturday or at least once per week, the money to be turned in to the home office 418 NW 5th street, Oklahoma City.

The testimony reveals that while acting as said Agent the defendant wrote an application on the 10th day of September 1959 for one Albert A. J. Rauh of Alva, Oklahoma and took from him a check made out to defendant as premium for said policy in the amount of $356.70.Defendant took the check to the Alva State Bank and cashed the check and received the money.About a week later Mr. Rauh called the company's office and made inquiry as to why he had not received his policy.The defendant was in the office of the company on September 19 and advised them he had not written a policy for Mr. Rauh.Several days later on October 12, according to Mr. Gammill, defendant called him from Sacramento, California and said he was sorry he had 'done all the stuff' and would like an opportunity to straighten himself out.Mr. Gammill related a portion of defendant's statement as follows:

'* * * without being mercenary, and begging around, and said he didn't have any money, and said he had blown it all in; and I said, 'well you got to submit the business, how much is it?'And he says, 'I know I have,'he says, 'I know I have done wrong and I am sorry. * * *''

Also there was introduced into the record a letter from defendant to Mr. Gammill as follows:

'Dear John, I am very sorry to have left the way I did but I was in a service station and paid for my gas, I also was in the rest room after that, and when I got to the cafe downtown I was missing my wallet.I drove back to the station, but it wasn't there.I had over $1400.00 in it practically all cash.After having talked to Bob about accounts, and so forth, and knowing of the outcomings of having to turn in short, I thought it best that I leave to where I would have a chance to make it up.It will probably take about 90 days, but don't worry, I will not let you down on my turn-in.I will send you an amount each month until it is caught up.I am living in Miami now and have a good job.I thought it better if I got away from insurance until I can get you paid.I am sorry again for having left the way I did, but I had to have a chance, and like I said, after having talked to Bob, I knew I wouldn't there.Thanks for your patience.Bob Williams.'

There was little conflict in the testimony as it concerned the transaction.Defendant contended that it was not uncommon to be short, but it was somewhat of an open account; that he had paid some of the shortages but had informed the company that he would not pay any more until he had a full accounting to determine the exact amount of the shortages.He further testified he had authority and instructions to cash the checks out in the field.

Defendant contends that Oklahoma county was without venue and argues that if a crime was committed it was in Woods county where the check was cashed and the money converted.

It is to be observed from the testimony that defendant was the trustee for the insurance company and it is...