1 N.W.2d 322 | Neb. | 1941
Defendant Escher, Charles B. Morearty and Zazel I. Alban were charged with conspiring to commit a felony, to wit, embezzlement. Escher was tried separately and convicted. He appeals.
The indictment charges that the three parties named were on February 27, 1936, officers and agents of the United Securities Corporation, and that beginning about February 27, 1936, and continuing until September 23, 1937, they did by a series of acts in furtherance of said conspiracy take into their possession money and property of said corporation with intent to defraud said corporation, convert to their own use and embezzle said money and property.
The trial was a lengthy one. The bill of exceptions consists of some 1,500 pages of testimony and copies of exhibits, together with a large container of exhibits, in all several hundred in number. Copies of many exhibits offered and received or offered and rejected are set out in the bill of exceptions. In several instances these exhibits, some of which are typewritten documents of many pages, are copied into the record, not once but several times. There is no excuse for this practice. Reporters should not do it; attorneys should protest it; and trial courts should protect the litigants from such a record. It adds needlessly to the expense of an appeal, increases the work of examin
The United Securities Corporation, hereinafter called the corporation, was organized in 1935. Its stock was sold to investors. Escher was a salesman engaged in that effort. It appears he was also a stockholder in the corporation. Sometime prior to February 3> 1936, Escher conceived the idea of gaining control of the corporation from its then officers. Escher employed Morearty as his attorney. Proxies for the stockholders were drafted, and Escher was instrumental in securing their signature, naming Morearty as proxy with broad powers. At the annual meeting February 3, 1936, Morearty, one Onken and Alban were elected directors, although Morearty and Alban were not stockholders. Morearty was elected president, Onken vice-president, and Alban secretary-treasurer. Some difficulty was encountered by the new officers in securing possession of the books, records and property of the corporation. But this difficulty was adjusted by a settlement in which, among other things, the old officers became the owners of the office furniture and fixtures of the corporation. Morearty’s office then became the office of the corporation. The new board gave Morearty broad powers in handling the affairs of the corporation and dealing with its assets. His salary was fixed at $75 a week. The corporation at that time had possession of some negotiable stock that its officers had secured from two Iowa women. This stock had been pledged for a loan to the corporation. It had also a block of stock in an Iowa corporation, then in receivership, but which was of material value. Immediately after gaining possession of the property, Morearty and Escher began a series of transactions over a period of months that resulted in the corporation’s assets being first converted into cash, and then transferred to Escher and Morearty, or a corporation which Morearty organized and controlled. From February, 1936, to May, 1937, the business of the corporation was largely dealings with Escher and Morearty’s corporation. But little other business
Then the stock in the Iowa corporation was sold for some $20,000, and although Morearty seems to have closed the deal, he testified that Escher made the contacts, and in any event Escher was paid $1,004.27 commission on the sale. Escher deposited the check representing this payment in a Lincoln bank, withdrew $452, and shortly thereafter Morearty deposited $452 “currency” in his Omaha account. Morearty admitted receipt of the money and testified that it was an attorney’s fee paid him for services to Escher in securing control of the corporation. A number of other checks were issued to Escher for various amounts and his unsecured notes were taken payable to the corporation.
Also, Escher would purchase securities of debatable value, and sell them to the corporation, usually at a profit to himself. These securities were taken by Morearty without more than a casual investigation as to their actual value. The corporation then sold them back to Escher at a 5 per cent, book profit to the corporation, and Escher gave the corporation his unsecured promissory notes in payment. Escher then sold the stock to other purchasers, in at least one instance at a price materially less than the purchase price. The net of these transactions was that Escher got the stock and the profit to him, and the corporation got his notes, unsecured and not collected. In at least one of these stock transactions Escher did not deliver the stock,
Morearty also organized an investment corporation that seems to have had one or more stores in California. Escher was a salesman for the stock in that corporation. Three United Securities Corporation checks totaling $2,000 were issued to the manager of the California store, and the United Securities Corporation received in return therefor stock in the Morearty corporation. Morearty repurchased some of the stock in his investment corporation from dissatisfied stockholders and gave his personal check in the sum of $960 therefor and immediately issued a United Securities Corporation check to “cash” for the same amount which he, Morearty, indorsed and deposited, so that that stock got into the ownership of the corporation. A total of $2,960 of the corporation’s money went out for stock in Morearty’s investment corporation.
Throughout this period Morearty claims that he was working on a number of big deals which would have been to the great profit of the corporation; only one of them materialized to the actual profit of the corporation. Escher also had big deals, one of which was the refinancing of a corporation in Lincoln. By an instrument dated September 8, 1936, Escher and the corporation recited this refinancing agreement and the corporation agreed to advance Escher funds to cover his costs in carrying out the contract, and Escher agreed to give his notes therefor and to assign to the corporation his profits from the refinancing deal and to collateralize his then indebtedness to the corporation by the assignment of profits and in addition to pay the corporation a bonus of 2 per cent, of his gross profits on the refinancing deal. The assignment is attached to the instrument.
Throughout all of these transactions the corporation paid
A 5 per cent, dividend was paid in January, 1937, although the corporation at that time was showing an operating loss of a considerable amount.
Without attempting to detail each transaction, it may be said that the evidence shows that Escher and Morearty were working together in many, if not all, of these transactions, so that before May of 1937 the entire assets of the corporation were dissipated; and in September, 1937, Morearty resigned and recommended the liquidation of the corporation and turned its assets over to the vice-president. The vice-president does not seem to have comprehended what was going on and does seem to have trusted Morearty and Escher.
It should be said here that Alban’s connection with these transactions appears to be that she was a secretary in Escher’s Lincoln office, and that her only affirmative action was to sign the checks as secretary-treasurer. These checks, it appears, were often, if not always, signed by her in advance of their issuance and countersigned by Morearty when issued, so that Morearty controlled the actual issuance of the checks.
The defense was that Escher was not an employee or officer or agent of the corporation and could not be an embezzler; that no embezzlement occurred; that the transactions were loans, and the sale and purchase of stock, and payment of commission earned, and were all made in good faith; and further that Escher had secured the corporation by the assignment of his profits from the Lincoln refinancing deal; and that there was no criminal intent. It may be said that, so far as this defense relies upon facts, the jury’s verdict disposes of those contentions contrary to Escher, and there is ample evidence in the record to sustain their conclusion in that regard.
Defendant’s first proposition is that in a case of this kind it is necessary for the state to prove a felonious intent. As
Escher next contends that the trial court erred in refusing to permit the introduction of documentary and other evidence which, he contends, would have proved the absence of a criminal intent. The trial court admitted in evidence the agreement between Escher and the corporation dated September 8, 1936, to which reference is made in the statement of facts. The trial court refused to admit in evidence proof of a refinancing proposal made by Escher and accepted by the Lincoln corporation in February, 1937; its performance by Escher; its breach by the Lincoln corporation; and testimony of lawyers that Escher had a valid recoverable claim for some $19,000. We do not consider that the trial court erred in denying the admission of this testimony. It must be remembered that the defendant was charged with having entered into a conspiracy with others to embezzle. That conspiracy, as the state’s evidence shows, was formed and overt acts committed long before the refinancing agreement was made with the Lincoln corporation. The felonious intent had to exist when the conspiracy was formed and the acts done. Proof that subsequent to commission of the crime Escher had earned money, which if collected and which if paid to the corporation would have restored in part its looted assets, does not prove the absence of a criminal intent when the crime was committed. The trial court properly refused to permit the jury’s attention to be diverted from the peculation charged to Morearty and Escher to a controversy between Escher and the Lincoln corporation.
Defendant next cites Hamilton v. State, 46 Neb. 284, 64 N. W. 965, and argues that the evidence in this case establishes a debtor and creditor relationship between the defendant and the corporation, that that alone is not sufficient to sustain a conviction, and that under the instructions the jury could have found a verdict of guilty based upon that relationship alone. We do not so read the instructions, and the defendant does not point out the basis of this contention. Morearty was a lawyer, Escher a licensed and experienced broker. They knew what they were doing. .This evidence shows much more than a mere relationship of debtor and creditor. There is ample evidence to support the conclusion that the giving of the notes and the bookkeeping devices set up were but blankets of apparent legality under which the consummation of their conspiracy and the looting of this corporation took place.
Defendant next states: “An instruction which recites some of the essential elements of the crime charged and omits others, and tells the jury that the things recited in the instructions would constitute the crime is erroneous and constitutes reversible error. We refer to instruction number five given by the court. The court says that if the
The defendant next contends that the court erred in refusing to give a requested instruction and charges that under the instructions of the court it is possible for the jury to believe the defendant guilty of embezzlement, although they might not be of the opinion that there was any conspiracy. The answer to this is that the court gave an instruction requested by the defendant as follows: “You are instructed that in this case your first duty is .to determine whether or not a conspiracy, as alleged in the indictment, has been proved by evidence beyond a reasonable doubt. The sole and only crime charged is a conspiracy
Defendant in his “review of the evidence” makes a number of references to rulings of the trial court on the rejection and admission of evidence. These, while not specifically assigned as error, have been considered along with the assignments discussed, in the light of the statutory rule that “No judgment shall be set aside, or new trial granted, or judgment rendered, in any criminal case on the grounds of misdirection of the jury, or the improper admission, or rejection of evidence, or for error as to any matter of pleading or procedure, if the supreme court, after an examination of the entire cause, shall consider that no substantial miscarriage of justice has actually occurred.” Comp. St. 1929, sec. 29-2308.
Prejudicial error has not been found and no substantial miscarriage of justice has occurred.
The judgment of the trial court is
Affirmed.