McGuire v. People , 83 Colo. 154 ( 1928 )

McGUIRE was convicted of larceny as bailee and brings error.

The charge in the information was that he had converted to his own use $330 which he held as bailee for one Flory.

The pertinent facts shown by the people's evidence are that McGuire wished to buy certain sacks of sugar of the Union Pacific Railway company and that Flory gave his check to that company for $972 to pay for it, with an agreement that it should be taken to Flory's warehouse; that he, Flory, was to have seven per cent for his money and certain other sums; that McGuire should sell the sugar and give the price to Flory who should then pay him the profit less the above sums. McGuire sold 50 sacks, took a check for $330 payable to the McGuire Brokerage Company, which he controlled, and converted the proceeds to his own use.

1. It is claimed that the accused was not guilty of larceny as bailee because he got the money lawfully. The answer is that original lawful possession is an ingredient of this crime.

2. It is next claimed that there is no proof that he got the money on the check. The circumstantial evidence that he got it is clear and convincing.

3. It is urged that the charge is conversion of money and the proof is conversion of a check; but the negotiation of a check is equivalent to the receipt of the money upon it (Adams v. People, 25 Colo. 532, 55 P. 806), and failure to pay over the money collected for another is a conversion of it. These facts are proved in this case.

4. Plaintiff in error says that the said check for $972 was erroneously admitted in evidence. We can see no error. The check was a part of the original transaction between the bailor and bailee which transaction determines their relation as such.

5. The court admitted the face of the check for $972 but not the endorsements; the briefs say that the court committed error in allowing the whole check to go to the jury room; but the abstract does not show that that was done, we can see no possible prejudice if it was done and no objection on that ground appears to have been made.

Judgment affirmed.

MR. CHIEF JUSTICE BURKE, MR. JUSTICE WHITFORD and MR. JUSTICE SHEAFOR concur.