Young v. State , 44 Ohio App. 1 ( 1932 )

Arthur F. Young, the defendant below, was indicted for the crime of embezzlement; the charge being that he on the 13th day of April, 1931, being an officer and agent, to wit, executive vice president and general manager for an incorporated company, to wit, the People's Finance Company, did unlawfully and fraudulently embezzle and convert to his own use certain money of the amount and value of $46,948 of the personal property of and belonging to the said finance company. The indictment was drawn under favor of Section 12467, General Code. The case was tried and the jury returned a verdict finding the defendant guilty as charged in the indictment, and ascertained and declared the value of the property embezzled to be $22,090. A reversal is sought for several alleged errors.

The indictment was returned and filed July 24, 1931. Later a bill of particulars was filed by the state which recited more of the details of the alleged embezzlement.

The alleged misconduct on the part of a juror and certain witnesses for the state was not prejudicial nor of sufficient importance to warrant a reversal.

It is admitted that the defendant was an officer and the manager of the corporation, and in charge of its affairs. In testifying in his own behalf, he stated these facts, and said he was authorized to make all loans. The theory of the state was that the alleged illegal withdrawals of money from the funds of the corporation by the defendant were part of a system of alleged loans, which he made by placing his note in the files of the company and at the same time withdrawing a certain amount of cash by means of checks made payable to cash. Loan cards and files were supposed to be kept of each transaction. The transactions were practically alike, and covered a period of years. As part of its case the state offered in evidence the notes, checks, and papers. The files and papers in each transaction were offered in evidence and marked alphabetically as exhibits. There were seven of these transactions, A, B, C, D, E, F, and G. The total of these notes is $46,948, the amount stated in the indictment.

The court withdrew from the jury all of the evidence with reference to Exhibits A, B, and C except as it might bear on the matter of intent or purpose of the defendant. These exhibits were with reference to transactions occurring more than three years prior to the time charged in the indictment. The court admitted the evidence of the transactions with reference to Exhibits D, E, F, and G, which occurred within the three-year period. The total amount involved as shown by Exhibits D, E, F, and G was $22,090. It has been urged that it was not proper to admit evidence of the various transactions at different times, because the indictment alleged a date certain. This, however, is permissible. 15 Ohio Jurisprudence, 646. In this case time was not of the essence of the offense, and it was not necessary to prove the crime to have been committed at the exact time stated in the indictment, but it was sufficient to prove it at any time if it occurred before the finding of the indictment. 31 Corpus Juris, 681, 684; 14 Ruling Case Law, 179. The three-year limitation in Section 12467, General Code, is not to be regarded as a statute of limitations for the prosecution and punishment of the offense of embezzlement, but is merely for the purpose of authorizing the addition of various small peculations or embezzlements if within three years and under one continuous employment, so as to make a felony instead of a misdemeanor. Shelley v. State, 32 C.D., 399, 19 C.C. (N.S.), 164. The dates of the various transactions in this case are not seriously in dispute. The defendant did not deny the time of the transactions, nor did he deny the notes and checks. He claimed that they represented loans to himself, which he was authorized to make, that he did not convert the money to his own use, and that there was no criminal intent.

It is elementary that an agent cannot act against the interests of his principal; and the principle forbidding an agent to place himself in a position antagonistic to his principal absolutely precludes the agent from dealing with himself either directly or indirectly. 1 Ohio Jurisprudence, 761, 772. In the case of StateLife Ins. Co. v. Harvey, 72 Ohio St. 174, 73 N.E. 1056, it was held that an agent cannot act for himself and his principal in the same transaction. Neither can a director or cashier of a bank authorize a loan to himself. 5 Ohio Jurisprudence, 484; Blair v.First National Bank, 4 O.F.D., 476, 482, Fed. Cas. No. 1,485; 1 Morse on Banks and Banking (6th Ed.), Section 125.

In this case the defendant as manager of the finance company could not authorize a loan to himself. This is so, even if the transaction was made with the knowledge of the president of the corporation, because in such case it would result in injury to the corporation and a fraud on the remaining stockholders.

It is urged that the court erred in admitting evidence with reference to the transactions shown in Exhibits A, B, and C. It was the theory of the state that the defendant had a certain scheme or system by which he obtained the money from the finance company, and it offered evidence of the transactions for the purpose of showing the intent of the defendant. This was permissible by virtue of Section 13444-19, General Code. The evidence with reference to Exhibits A, B, and C was offered before the introduction of the evidence with reference to Exhibits D, E, F, and G, and the defendant claims that this was error. Section 13442-8, General Code, provides for the order of proceedings in a criminal case. This section gives the trial court authority to deviate from the stated order of proceeding when in its discretion it is deemed proper.

The record discloses that at the conclusion of the state's evidence the court instructed the jury that it could only consider the evidence with reference to Exhibits A, B, and C for the purpose of determining the question of intent to defraud, and that it could not consider this evidence or any part of it for any other purpose whatever. The court limited the purpose of this evidence before the issues were submitted to the jury. The court in its general charge again stated that the evidence with reference to these exhibits could only be considered as reflecting and determining the criminal intent and for no other purpose. It is urged that it was the duty of the court to instruct the jury as to the purpose for which this evidence was admitted at the time it was offered; that, by reason of the evidence having been offered early in the trial and remaining with the jurors during most of the trial, it was prejudicial to the defendant. The case of Baxter v. State, 91 Ohio St. 167,110 N.E. 456, is cited by the defendant. The Baxter case was partly overruled in the case of Scott v. State, 107 Ohio St. 475, 500,141 N.E. 19. We do not think that the rule laid down in theBaxter case is applicable here. The peculations of the defendant consisted of a series of transactions covering a period of years. They constituted in legal effect but one offense. There was no request at the time by the defendant that the evidence be so limited, and, as no such request was made by the defendant, he cannot now complain in this proceeding in error. Patterson v.State, 96 Ohio St. 90, 117 N.E. 169, L.R.A., 1918A, 583.

In some jurisdictions it is held that in the prosecution of an embezzlement by an agent, when the agent has once converted the property of his principal to his own use, the offense is complete, and that subsequent similar conversions constitute separate offenses. Our Supreme Court, in construing the statute upon embezzlement of public money, takes a broader view. Brown v.State, 18 Ohio St. 496, 497. In Campbell v. State, 35 Ohio St. 70, it was held:

"Upon a trial under an indictment containing a single count, charging the defendant with the embezzlement of moneys, where it appears that the moneys were the proceeds of several notes placed in his hands by his employer at different times, and collected by him from different persons and at different times, such facts alone do not constitute a ground for requiring the prosecutor to elect upon which of the sums so collected the state will rely for conviction."

The theory upon which the court acted evidently was that the agent might have received the money of his principal without actually converting it to his own use at the time he so received it; that the embezzlement was not fully consummated until after he had received the last installment of his several peculations. Under this theory it was the duty of the defendant at the time laid in the indictment not only to have accounted for the proceeds of the last note given by him, but for the proceeds of all of the notes theretofore given by him, and, when he failed to do so, he was guilty of embezzling in one offense all of the several items that had theretofore been converted to his use. If supported by the evidence, the defendant, under this theory, not only might have been convicted for the $22,090 taken by him within the three years prior to the indictment, but for the whole amount charged in the indictment, covering a much longer period. In the case of State v. Mook,40 Ohio St. 588, it was held that under such an allegation the state may prove the aggregate value of the property or the separate value of each peculation. The case of State v. Moyer,58 W. Va. 146, 52 S.E. 30, 6 Ann. Cas., 344, adopts the view of the Ohio courts.

The state was not called upon to elect upon what transactions it would rely for a conviction until all of its evidence was presented. Gravatt v. State, 25 Ohio St. 162; Campbell v. State,supra; State v. Moyer, supra.

All of the rights of the defendant were protected when at the close of the state's evidence, and in its general charge, the court limited the transactions with reference to Exhibits A, B, and C to the sole purpose of reflecting on the intent of the defendant. The court's directions in this regard were followed by the jury in its deliberations. It found in its verdict that the aggregate amount embezzled was $22,090. This is the exact amount involved in Exhibits D, E, F, and G. The record shows that the jury fully understood and followed the instructions of the court with reference to this evidence and the purpose for which it was admitted, and there was no prejudice in its admission.

It is urged that the admission of certain records of the finance company, such as the journal and ledger, was erroneous. While it was not shown that the entries in these books were made by the defendant in person, yet the evidence shows that the business of the finance company was operated under his supervision and direction. These records were admissible for the purpose of showing and explaining the system and manner in which the business of the finance company was transacted. The defendant was in no way prejudiced in view of the fact that there was no serious controversy as to the manner of bookkeeping or system of accounting used by the company.

The defendant claims that there was no evidence to the effect that the money in question came into his possession by reason of his employment. It is claimed that it is necessary that he should have received the money from third persons on behalf of the corporation and then converted it to his own use with intent to defraud. This contention is not sound. As already stated, the defendant was in charge of the business of the corporation. It was not necessary for him to have exclusive control of the money of the company. If he together with others had control of its funds, and by virtue of his office and position he exercised control over its property and funds, that would be sufficient.United States v. Harper (C.C.), 33 F., 471.

It is claimed by the defendant that the money represented in the exhibits and the amount returned in the verdict embraced some interest. Without going into unnecessary detail, it is sufficient to say that it is admitted that the transactions covered by the exhibits also embraced some money withdrawn by means of checks. On cross-examination the defendant admitted certain of these transactions. His claim was that they were legitimate loans authorized by him and that the money was withdrawn for the purpose of placing it in some of the other affiliated companies in which he was interested, with the knowledge of the president of the finance company. This contention of the defendant was not corroborated by other witnesses and was not believed by the jury. The jury evidently believed the evidence of the witnesses for the state who testified that the defendant concealed his withdrawals and peculations from the directors of the company, that the transactions were fraudulent, and that he converted the money to his personal use. It was in evidence that before an audit of the company's affairs the defendant removed and secreted the papers and records of his transactions for the purpose of preventing the officers of the company from gaining knowledge of his so-called loans. This evidence was persuasive with the jury when it considered the matter of intent. The means employed by the defendant in accomplishing his acts were not material if the intent to embezzle was present. The giving of a note for money received from another, if a mere incident in the carrying out of a fraudulent scheme, does not prevent the act from being an embezzlement. Stecher v. State, 202 Wis. 25, 231 N.W. 168, 70 A.L.R., 203.

We are not able to say that the jury was not justified in its conclusion. There was sufficient evidence offered to support the theory of the state, and, if the jury after hearing all of the evidence believed the state's witnesses instead of the defendant, we are not prepared to say the jury was wrong. The evidence offered by the state shows that the major portion of the $22,090 was money withdrawn by the defendant from the funds of the company. It is immaterial so far as the guilt or innocence of the defendant is concerned whether the verdict of the jury was or was not mathematically correct so long as the evidence showed the amount embezzled was more than $35 and therefore a felony.

The jury would have been warranted in returning a verdict of guilty with reference to the transaction concerning the note for $9,000, and in finding that the defendant in attempting to explain the same did not give a satisfactory account of the $311.76 in cash which he admitted was withdrawn. In any event, the jury was justified in finding the amount embezzled to be more than $35, and, if it was more than that amount, the crime was a felony, and the amount of the embezzlement could have no effect on the punishment to be inflicted. If any error was committed by the jury in fixing the amount embezzled, it could not prejudice the rights of the defendant, nor in any way affect the punishment. Meadowcroft v.People, 163 Ill. 56, 45 N.E. 991, 35 L.R.A., 176, 54 Am. St. Rep., 447; 9 Ruling Case Law, 1299; United States v. Harper (C.C.), 33 F., 471.

A consideration of the entire record discloses that no prejudicial error intervened, that the defendant had a fair trial, and the judgment should be affirmed.

Judgment affirmed.

MAUCK, P.J., concurs.

MIDDLETON, J., concurs in judgment.