State v. MacKeyState v. MacKey
- Reporters:
- , ,
- Before:
- Hathaway
We are asked on this appeal to decide only one question, whether
Appellant, John P. Mackey, on 22 May
1967
was appointed guardian of the Estate of Reverend John P. DeVane, a Catholic Priest. Reverend DeVane later died. Fourteen days thereafter Mackey was notified by the deceased’s executor to set forth an accounting of the assets in deceased’s estate. Approximately three months later, after several unsuccessful attempts were made by the executor to obtain the accounting, appellant admitted he did not have the assets of the estate. An Order to Show Cause why appellant should not make an accounting was issued and the matter was heard before the superior court on 11 July
1968. At the
hearing appellant agreed to replace $12,000 in cash at a stated date: and, an additional $16,000 guardian’s bond was fixed. The $12,000 and other monies, including interest, were later posted with the clerk of the court and paid over to the executor. A final accounting was reached and approved. On 10 September 1968 Mackey was discharged as guardian of the estate. Approximately nine months thereafter he was charged with and subsequently found guilty of seventeen counts of theft by embezzlement,
The gravamen of appellant’s argument is that since he voluntarily returned the prop- ■ erty prior to the complaint being laid before a, magistrate, “he falls within the purview of the two statutes pertaining to restitution.” The two statutes provide:
“A.R.S. § 13-685 . Intent to restore property as defense
In a prosecution for theft by embezzlement, the fact that the accused intended to restore the property embezzled is not a defense or ground for mitigation of punishment, if the property has not been restored before a complaint has been laid before a magistrate charging the commission of the offense.
A.R.S. § 13-686 . Restoration of property as mitigation of punishment
In a prosecution for theft by embezzlement, when prior to the time a complaint is filed with a magistrate charging commission of the crime, the person accused voluntarily and actually restores or tenders restoration of the property alleged to have been embezzled, or any part thereof, such restoration or tender is not a defense to the charge, but it authorizes the court to mitigate the punishment in its discretion.”
Appellant asks us to find the statutes contradictory to the end that they do not effectively provide guides upon which an individual can base his future conduct and so violate the rule expressed in Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926) :
“That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.”
See also International Harvester Co. v. Kentucky, 234 U.S. 216, 34 S.Ct. 853, 58 L.Ed. 1284 (1914); Collins v. Kentucky, *419 234 U.S. 634, 34 S.Ct. 924, 58 L.Ed. 1510 (1914); State v. Cota, 99 Ariz. 233, 408 P.2d 23 (1965); 21 Am.Jur.2d Criminal Law § 17 (1965).
We believe that to find the statutes vague and contradictory we would necessarily have to interpret
Appellant’s argument might have merit if we were interpreting
The precise language of
The statutes in question were adopted from California and we therefore look with great interest to that jurisdiction. See West’s Ann.Pen.Code, §§ 512, 513. In People v. Talbot, 220 Cal. 3, 28 P.2d 1057 (1934), the California Supreme Court interpreted these code provisions:
“ * * * and the fact that such officers intended to restore the money or property is of no avail to them if it has not been restored before information laid or indictment found charging them with embezzlement (Pen.Code, § 512); and even if prior to the bringing of such charges the officers voluntarily and actually restore the property, such fact does not constitute a defense but merely authorizes the court in its discretion to mitigate the offense (section 513). It would seem that the Legislature here has shown in very clear terms that it is the immediate breach of trust that makes the offense, rather than the permanent deprivation of the owner of his property.” 28 P.2d at 1062.
To aid his argument of ambiguity, however, appellant contends the California appellate court in People v. Kirwin, 87 Cal.App. 783, 262 P. 803 (1927) had interpreted section 512 as not providing that restitution was a complete defense “except under certain circumstances.” We believe *420 appellant has taken the following language in Kirwin out of context:
“Appellant contends that this restitution was a complete defense to the charge upon which he was later committed, under the provisions of section 512 of the Penal Code * * *
* ‡ ‡ *
It will he observed, however, that this section does not provide that restitution is a defense, but that it is not a defense except under certain circumstances. The enactment must be read in connection with section 513 of the same Code, which is to the effect that, when all proper circumstances are present, the fact of restitution ‘is not a ground of defense, hut it authorizes the court to mitigate punishment, in its discretion.’ ” 262 P. at 804.
The quoted language is plainly contrary to appellant’s position. See also People v. Kay, 34 Cal.App.2d 691, 94 P.2d 361, 363 (1939), “* * * the actual voluntary restoration of embezzled money or property ‘prior to an information laid before a magistrate, or an indictment found by a grand jury’ is declared to be ‘not a ground of defense, but it authorizes the court to mitigate punishment, in its discretion’.” (Original emphasis); and People v. Colton, 92 Cal.App.2d 704, 207 P.2d 890, 893 (1949), “An agent of a corporation cannot take its money which has been entrusted to him or over which he has control as such agent and use it even temporarily for his own personal benefit and avoid criminal responsibility by calling it a loan * * * ” And in People v. Williams, 145 Cal.App.2d 163, 302 P.2d 393, 395 (1956), “An intent to return it to the trust * * * or a later restoration would not affect the fact of a completed embezzlement.”
In short the California decisions simply do not support appellant’s argument and Enrenreich, supra, and other cited New York decisions are not in point as those courts were not considering a second statute similar to
Affirmed.
KRUCKER, C. J., and LLOYD C. HELM, Superior Court Judge, concur.NOTE: Judge LAWRENCE HOWARD having requested that he be relieved from consideration of this matter, Judge LLOYD C. HELM was called to sit in his stead and participate in the determination of this decision.
Notes
. This conclusion logically follows from the definition of embezzlement set forth in