State v. McGuire , 107 Mont. 341 ( 1938 )

It is well-settled law in criminal cases that before one may be convicted of crime all of the material allegations of the information must be proven so as to satisfy the jury beyond a reasonable doubt of the defendant's guilt; likewise, that a defendant may not be convicted upon conjectures, however shrewd, on suspicions, however justified, on probabilities, however strong, but only by evidence which establishes his guilt beyond a reasonable doubt; that is, upon proof such as to logically compel the conviction that the charge is true. (State v. Mullins,55 Mont. 95, at p. 99, 173 P. 788; State v. Taylor, 51 Mont. 387,153 P. 275; State v. Postal Tel. Cable Co., 53 Mont. 104,161 P. 953.)

In substance, the testimony upon which the state relied for a conviction was that the defendant, as vendor of the Harlem Liquor Store, had not deposited in the designated bank, the proceeds of the liquor store at the end of each day's business, as required by instructions contained in bulletins at different times during the year, and it was sought to prove that for a long time prior to September 7, 1937, the date of the alleged larceny, the defendant had failed to make the daily deposits of money in the bank, although his daily reports were sent in, together with the duplicate deposit slips. When these facts are considered together with the fact that the liquor store and the bank statements were audited by the Liquor Control Board, or its duly authorized auditors, it can hardly be concluded that the defendant is guilty of anything more than extreme negligence in the handling of the funds of the liquor store.

At the close of the state's case the evidence was in that condition; that is, no larceny had been proven, no intent had been shown, and there was nothing more than a suspicion cast upon the defendant, a set of circumstances which could, if unexplained, point to guilt. But that is not sufficient to warrant a conviction. (State v. Mullins, supra; State v.Trosper, 41 Mont. 442, 109 P. 858.)

The defendant explained in detail his difficulty in finding time in which to carry on the business of the store, make his daily reports and strike a balance, and the resultant difficulty of making the deposits in conformity with his daily reports. For several years his practice had been to deposit the proceeds as soon as his balances were struck. It was careless of him, certainly, but the Liquor Board was equally as careless. The audits, if efficient and accurate, surely disclosed his methods. He had no safe in the store and it was his practice to take the money to his home for safe-keeping until told not to do so by the board's auditor, because of insurance. Hence, on September 7, 1937, he removed what money he had at his home back to the store. This was his first opportunity to do so after being instructed by the auditor of the consequences in case of loss. On that evening, his evidence recounts how he was robbed. Immediately he tried to contact his superiors. He called the police and did everything one would or could do after being robbed. Other witnesses testified as to his actions and the possibilities of a holdup, and in substance corroborated his version of the holdup. The only evidence offered to rebut the defendant's defense was that of four officers. All of their testimony convinces us they were in Harlem that evening but did not see a robbery committed. Surely, if the defendant was robbed, he is not guilty of larceny. The fact that the officers did not see the crime committed is no evidence that it was not committed, and their feeble efforts to apprehend the robbers or investigate the case must convince anyone except a biased jury, that an innocent man has been convicted. The information charges the defendant with grand larceny as bailee, by appropriating funds of the State of Montana, under the provisions of subdivision 2, section 11368, Revised Codes. In the defendant's capacity as vendor of the state liquor store at Harlem, Montana, he occupied a fiduciary relationship with the state, in the operation of that business and handling of the funds, and particularly was he required by rules and regulations of the Montana Liquor Control Board to make daily deposits of all the funds received by him in a specified depositary. When the state had proved that defendant in that capacity had not deposited and made his accounts as he was required to do, and that there was a shortage in his said funds amounting to $1383.50, then the state had proved the necessary allegations of the information and had made out a prima facie case. (State v.Hayes, 59 Kan. 61, 51 P. 905; State v. Evans,143 Kan. 29, 53 P.2d 789, 790; State v. Olson, 75 Utah, 583,287 P. 181; People v. Wardwell, 77 Cal. App. 44, 246 P. 97;People v. Rowland, 12 Cal. App. 6, 106 P. 428; State v.Turner, 118 W. Va. 93, 188 S.E. 765; State v. Bikle,180 S.C. 400, 185 S.E. 753.)

Defendant having failed to make his deposits and accounts as required and a general shortage having been established, there was sufficient evidence for the jury to determine, as a question of fact, whether or not the necessary criminal intent was present, and in so determining, the jury could take into consideration the fact that the defendant was a public officer, handling the receipts of his principal in a fiduciary capacity; his failure to comply with the regulations in making the required deposits, and his purported justification and reasons for failing to do so, and the general shortage, together with all other surrounding circumstances. The jury in the determination of these facts, had the right to draw inferences and presumptions, including the necessary element of criminal intent under appropriate instructions. (People v. Brock, 21 Cal. App. 2d 601,70 P.2d 210, 214; Landrum v. State,60 Okla. Crim. 259, 63 P.2d 994, 997; Lewis v. People, 99 Colo. 102,60 P.2d 1089; People v. Kirk, 94 Cal. App. 378, 271 P. 347; State v. Lockie, 43 Idaho, 580, 253 P. 618;Cook v. People, 60 Colo. 263, 153 P. 214; State v.Narich, 92 Mont. 17, 9 P.2d 477.)

By way of defense to the accusation and evidence submitted in support thereof, defendant testified that he was robbed of the money with which he was charged as having stolen or misappropriated; he was allowed unrestricted latitude in submitting this defense and giving his explanation therefor. Having done so, it then became a question of fact for the jury to say whether or not it believed such explanation. By its verdict, it said that such explanation was unbelievable. The jury may believe or disbelieve such explanation. In any event, it is a question of fact for the jury. (State v. Russell, 93 Mont. 334,340, 18 P.2d 611; State v. Smith, 57 Mont. 563,572, 190 P. 107; State v. Trosper, 41 Mont. 442, 447,109 P. 858; State v. Howard, 30 Mont. 518, 77 P. 50; State v. Keerl, 29 Mont. 508, 509, 75 P. 362, 101 Am. St. Rep. 579;State v. McClellan, 23 Mont. 532, 533, 59 P. 924, 75 Am. St. Rep. 558; 16 C.J. 531.) Under the information the defendant was charged with grand larceny as defined in section 11368, Revised Codes. The information charges him with having money belonging to the state in his possession and custody and unlawfully appropriating the same to his own use, with the intent to deprive the state of its property. The record is barren of any testimony that the defendant appropriated the money in question to his own use with the intent to deprive the state of its property.

If we assume that the state made a prima facie case by showing[1] the shortage, the verdict cannot stand because the shortage was explained by defendant consistent with his innocence of the crime of embezzlement. The general rule is set out in this regard in the case of Koppe v. State, 21 Ohio App. 23,153 N.E. 109. It is there said: "It has been decided a great many times that the mere retention of moneys not belonging to him by a private or public officer does not constitute embezzlement, and that some further fact must be shown before the complete crime is proved. Sometimes the actual commission is shown by the application of the funds to the agent's own particular use, as it was in the case of State v. Baxter,89 Ohio St. 269, 104 N.E. 331, Ann. Cas. 1916C, 60, 52 L.R.A. (n.s.) 1019. Sometimes it may be shown by the agent's failure to respond to a timely demand made upon him by his principal, or some other person authorized to make the demand."

In the Koppe Case, supra, the defendant received the receipts of a fine and then subsequently denied such receipt. The court held that this fact of denial was sufficient evidence of appropriation to satisfy the rule set out above, and that the state had a sufficient case to go to the jury. (See, also,Cline v. Commonwealth, 161 Ky. 678, 171 S.W. 412; Reid v.State, 194 Ark. 422, 108 S.W.2d 464; Rapalje on Larceny and Kindred Offenses, p. 526.)

In the present case the defendant admitted having received the[2, 3] money. He testified in detail how two men held him up at the point of a gun and robbed him of the money here in question. The defendant's story of the robbery stands uncontradicted by the state and partially corroborated by the defendant's and the state's witnesses.

The jury, by finding the defendant guilty, evidently entirely disbelieved the defendant's story of the robbery and found the elements of the crime from the suspicious circumstances. The defendant, however, has satisfactorily explained the suspicious circumstances which otherwise might have supported a conviction under the general rule, and the defendant's evidence on these points is even corroborated by the state's witnesses. The conviction then stands on the facts that the defendant had custody of the money and was found short in his accounts. The conviction on these facts might stand if the defendant were charged under section 11319, Revised Codes, under which appropriation to his own use with the intent to deprive the state of its property need not be shown, but the defendant is charged under section 11368, which makes the appropriation and intent the necessary elements. These facts the state must prove. "In the absence of a statute making the mere failure or refusal of a public officer to turn over funds in his hands sufficient evidence of appropriation, the general rule is that a guilty intent must be shown." (9 R.C.L. 1286; State v. Leonard,56 Wash. 83, 105 P. 163, 21 Ann. Cas. 69.) 9 R.C.L. 1276: "The mere neglect to pay over money is not sufficient proof of a fraudulent conversion to one's own use, for there may be losses and failures to pay or even to account where the failure is due to misfortune or other cause not criminal." (People v.Bringard, 39 Mich. 22, 33 Am. Rep. 344.)

As before stated, the defendant's story as to how he was robbed is uncontradicted. There is nothing inherently incredible concerning this story. Corroborating circumstances abound in the testimony. Witnesses testified that his reputation for truth, honesty and integrity was good and this, too, stands uncontradicted.

We have frequently held that uncontradicted, credible evidence cannot be disregarded by court or jury. (Ross v. IndustrialAccident Board, 106 Mont. 486, 80 P.2d 362, and cases therein cited.) True, defendant did not produce the robbers to corroborate his testimony, but this was because they made their escape.

This case is similar to that of Cline v. Commonwealth, supra. In that case Cline was accused of embezzling money. His defense was that he had lost it. The court said: "He admitted having collected it, and having failed to pay it over; but this did not establish his guilt of embezzlement. If he did not use the money, but in fact accidentally or negligently lost it, he may be liable civilly for it, if negligent, but for this he is not guilty of embezzlement."

The evidence was insufficient to support the verdict and judgment, and the judgment is accordingly reversed.

ASSOCIATE JUSTICES ANDERSON and ANGSTMAN concur.

ASSOCIATE JUSTICES STEWART and MORRIS dissenting.