158 P. 1096 | Utah | 1916
The defendant was convicted of the crime of embezzlement, and appeals. '
In the information it is charged:
“The defendant, William W. Harcombe, on or about the month of February or March, 1915, at Ogden City, Weber County, State of Utah, he then and there being the agent and clerk of C. A. Boyd, J. H. De Vine, and Royal Eccles, copart-ners doing business under the name and style of Boyd, De Vine & Eccles, did fraudulently appropriate to his own use and secrete with a fraudulent intent to .appropriate to his own use money in the amount of $375.00, which had come into his control by virtue of his employment as such agent and*91 clerk, said money having been collected by said defendant from one D. Rosenthal, proprietor of the Golden Eagle ‘Clothing Company in Ogden City, Weber County, State of Utah, and which money was then and there the property of said Boyd, De Vine & Eccles.”
The information is based upon Comp. Laws 1907, Sec. 4380, which reads:
‘ ‘ Every clerk, agent, or servant of any person who fraudulently appropriates to.his own use, or secretes with a fraudulent intent to appropriate to his own use, any property of another which has come into his control or care by virtue of his employment as such clerk, agent, or servant, is guilty of embezzlement. ’ ’
The material undisputed facts, in substance, are as follows: In January, 1913, C. A. Boyd, J. H. De Vine, and Royal Eccles, attorneys at law, at Ogden, Utah, formed a copartnership for the purpose of pursuing the practice of law under the firm name of Boyd, De Vine & Eccles. In connection with the general practice of law, the firm was also engaged, in the collection business; that is, they, as Mr. Boyd said, also had a collection department, which, it seems, was under his immediate supervision. In order to give exclusive attention to the general law practice, the firm, in the spring or summer of 1914, entered into an arrangement with the defendant, who was a young lawyer at Ogden, to come into the office of the firm for the purpose of attending to certain legal matters for the firm as they should from time to time arise. The defendant was given desk room and all office supplies, including the services of the firm’s stenographer, and was to receive for his services fifty dollars per month. He was also to attend to the making of the collections received by the firm from collection agencies and others, and for those services, in addition to. said fifty dollars per month, he was to receive one-half of the regular commissions obtained for making the collections. The defendant was to account to the firm of Boyd, De Vine & Eccles for all collections made by him, and said firm from time to time paid him his share of the commissions. The defendant was to retain and continue to attend to his own private law business. The defendant, it seems, attended
After the State had, in substance, proved the foregoing facts, together with the necessary jurisdictional facts, the defendant’s counsel requested the court to instruct the jury to> return a verdict of “not guilty,” for the reason that the State had failed to prove that the defendant was the “agent or clerk” of said Boyd, De Vine & Eceles, and for the further reason that the State had failed to prove that the money which it was charged the defendant had “appropriated to
In view that we have reached the conclusion that, as matter of law, the firm of Boyd, De Vine & Eccles was not the owner of the money in question, it becomes wholly immaterial what the real relation was between said firm and the defendant in so far as the collections were concerned. We therefore express no opinion upon the first proposition urged by the defendant.
If, in the case at bar, the checks in question had been made payable to the firm of Boyd, De Vine & Eccles, and the money represented by them was that firm’s money, there would be more force to the State’s argument. It is, however, quite apparent that the charge in this case was for the embezzlement of money and was made because the State could not have proved that the checks were the property of the firm of Boyd, De Vine & Eccles. The mere production of the cheeks would clearly have shown that they did not belong to that firm. The State therefore charged that the defendant had embezzled the money, instead of the checks. But even that charge, for the reasons stated, was not proved. It is true that the prosecuting officers may sometimes be in doubt whether, under a certain state of facts, a particular transaction constitutes the embezzlement of money or checks or other evidences of indebtedness, or what facts ultimately may be disclosed by the evidence. In all such cases, however, the State can suffer no injustice, since it may always charge the transaction in different counts and cannot be required to elect upon which count it will ask a conviction until the evidence is before the court and jury, from which the nature or character of the transaction may be determined. There may also be circumstances under which the ultimate facts are in doubt so that the whole question regarding the character of the transaction, under proper instructions, may be submitted to the jury, and they may find the facts, and upon the facts when found, base their verdict in accordance with the instructions from the court. Cases falling within the latter class, in the very nature of things, must be rare indeed. The State therefore may easily prevent a variance by stating the transaction in different counts and electing upon which count it will stand in accordance with the evidence produced. If that course had been pursued in this case and the checks had been the property of the firm of
The State has also cited section 54 of Morse on Banks & Banking. The only 'thing that is stated in that section is that the presentation of a check to the bank upon which it is drawn and the transfer of the proceeds to the credit of the person presenting the check constitutes payment of the check. Surely no one will dispute that proposition. Neither will any one seriously contend that that proposition has any bearing upon the transaction involved in this case.
The judgment is reversed, and the case is remanded to the District Court of Weber County, with directions to grant a new trial.