Opinion
No. State 35.
Argued April 4, 1969. —
Decided May 6, 1969.
ERROR to review a judgment of the county court of La Crosse county: ALBERT L. TWESME, County Judge of Trempealeau county, Presiding. Affirmed.
For the plaintiff in error there were briefs and oral argument by James H. McDermott, state public defender.
For the defendant in error the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief were Robert W. Warren, attorney general, William A. Platz, assistant attorney general, and Burleigh Randolph, district attorney of La Crosse county.
The plaintiff in error, Rollin J. Peters, hereinafter defendant, was charged in the information with two counts of violating sec. 943.20, Stats., theft, in that he did:
". . . obtain title to the property of another, to-wit: $5,000.00 belonging to Clarence J. Stokes of the said City of Onalaska, by intentionally deceiving him with a false representation known to be false, made with intent to defraud, and which did defraud the said Clarence J. Stokes;
"(2) That between the 8th day of January and the 4th day of April, 1965, at the City of La Crosse, in La Crosse County, by virtue of his office, business or employment as manager of National Charity Corporation, a Wisconsin Corporation (non-stock) and having possession, custody and control of the money of the Corporation, to-wit: $4988.67, did intentionally use, transfer, conceal or retain possession of such money without the owners' consent, contrary to his authority and with intent to convert the same to his own use or the use of a person other than the owner; that if said money did not belong to the Corporation, the said Corporation held said money as Trustee for another, to-wit: Clarence J. Stokes of Onalaska, Wisconsin, for a specific purpose."
He was found guilty by a jury on both counts. The court on motions after verdict, however, dismissed the guilty verdict as to Count 1 and sentenced the defendant to a term of not more than three years in the state prison on the second count.
The defendant, for several years, worked as an insurance agent. He sold health insurance generally and to several retired persons, including Clarence J. Stokes of Onalaska and the Misses Luella, Helen and Evelyn Leete of Sparta.
During his various visits with the Leete sisters he discussed the needs of Cuban refugees. In the course of time he suggested a charitable corporation, to be called the "International Charity Corporation" (later changed to the "National Charity Corporation," and referred to as NCC herein) be created for the purpose of financially assisting refugees of good moral character.
The Leetes, then, agreed to a plan to create the corporation under which Luella became president, Evelyn the vice-president, and Helen the secretary. The defendant became the business manager of the corporation and as such was employed to seek contributions and manage the corporate affairs. In exchange for his services he was to receive 25 percent of the contributions, which amount was to cover both his compensation and the corporate expenses.
The Leetes did not contribute to the corporation. The defendant had already borrowed about $7,000 from them in connection with his insurance business, and the Leetes, being retired, were of limited means.
Prior to the actual incorporation the defendant did request that the sisters make a short term loan of $750 to cover organizational expenses. The loan was made by checks. The defendant cashed the checks, receiving $350 in cash and depositing the remaining $400 in his personal checking account.
The executed articles of incorporation were sent to the secretary of state by the defendant, accompanied by a registration application requesting that the corporation be registered as a professional fund raiser and by the defendant's sixty-day personal note for $5,000 for statutory fund raiser's surety bond requirement.
The secretary of state's office returned the application, note and registration fee stating that defendant's personal note did not meet the surety bond requirements of the statute, sec. 175.13(5), and that either a corporate surety bond or other surety bond, covered by an agreement with a trust company or bank under which $5,000 would be deposited in trust, was acceptable.
Because he was unable to register as a professional fund raiser based on his personal note, defendant went Clarence Stokes, from whom defendant had borrowed substantial unrepaid sums in the past, requesting Stokes to loan $5,000 to be placed in a bank as surety for the corporation's license. (There is a dispute as to whom the money was loaned, defendant or NCC, and the purpose of the loan.)
On January 5, 1965, Stokes agreed to make the loan and a check for $5,000 was made out to Stokes, endorsed by him, and then endorsed by Peters for deposit only by the defendant to the account of NCC. The loan was to be repaid in sixty days at six percent interest plus $250 bonus.
The defendant deposited the $5,000 check in a regular business account in the name of National Charity Corporation on January 8, 1965. No trust account was established with the bank to comply with the statutory bond requirements nor any other purpose.
He then wrote a letter to the Leetes informing them that he had received a $5,000 contribution, stating that the money had to remain in the bank as surety for the bond to the state. Before sending the letter he had already withdrawn $100, $50 of which he converted to cash and placed the other $50 in his personal checking account. On January 20, 1965, he transferred another $3,700 to his personal account from the remaining money in the NCC account, and by the end of April, 1965, he had withdrawn all of the $5,000 except for a balance of $14.02. (The information only covers those amounts taken between January 8-April 4, 1965.)
The deposit of $5,000 received from Stokes was the only deposit ever made to the NCC business account.
At the trial over 100 exhibits were introduced, together with the testimony of numerous witnesses, to show that practically all of the money withdrawn was used to pay defendant's personal bills and expenses.
In April of 1965, defendant disappeared. On September 24, 1965, he was arrested in Seattle, Washington on a fugitive warrant and returned to Wisconsin.
Defendant appeals from the judgment of conviction.
Defendant's first contention is that the verdict of guilty as to Count 2 is so unintelligible as to require the granting of a new trial.
The verdict returned as to the second count is as follows:
"We the jury find the defendant, Rollin J. Peters, guilty of theft between January 8, 1965 and April 4, 1965, by virtue of his employment as charged in the second count of the Information and find the value, of money stolen to be $4843.72."
Defendant does not attack the language of the verdict itself but does attack the language of the information to which it relates. It is argued that Count 2 actually consists of two charges: (1) That Peters embezzled money belonging to NCC, or (2) he embezzled money belonging to Stokes. The defendant argues that because of the alternatives of Count 2 in the information he does not know what the jury found him guilty of illegally doing.
In actuality, defendant does not challenge the verdict, he challenges the information. The verdict is patently clear upon its face and is susceptible of but one meaning, that the defendant is guilty of whatever is charged in Count 2.
Count 2 does not charge two separate and distinct violations of the statute, as argued by the defendant. It contains but one allegation of embezzlement, with ownership of the money charged in the alternative: ". . . that said money did not belong to the Corporation, the said Corporation held said money as Trustee for another, to-wit: Clarence J. Stokes. . . ." The complaint, in effect, clearly states that in either case the money was taken without the consent of the owner.
It is stated in 26 Am. Jur. 2d, Embezzlement, p. 592, sec. 39:
"In charging the offense of embezzlement, it is generally necessary to allege that the wrongful appropriation was of the property of another. Unless the rule, is modified by statute, the allegation as to ownership must, again, be as accurate as that m an indictment for larceny, and must state the name of the person to whom the property belongs and the fact of his ownership. The purposes of charging ownership in an indictment for embezzlement are to show that the title or ownership is not in the accused, to bring notice to the accused of the particular offense for which he is called to answer and to bar subsequent prosecution of the accused for the same offense."
In 23A C.J.S., Criminal Law, p. 1055, sec. 1393, the rule is stated as follows:
"A verdict is sufficient in form if it decides the question in issue in such a way as to enable the court intelligently to base a judgment thereon; it is sufficient where a judgment properly rendered on it will bar another prosecution for the same offense . . . A form of verdict susceptible of two meanings in view `of' the language of the information is not objectional when, in accordance with either meaning, accused is guilty under the same statute."
The statute involved is sec. 943.20. In part, it is as follows:
" Theft. (1) Whoever does any of the following may be penalized as provided in sub. (3).
". . .
"(b) By virtue of his office, business or employment, or as trustee or bailee, having possession or custody of money or of a negotiable security, instrument, paper or other negotiable writing of another, intentionally uses, transfers, conceals, or retains possession of such money, security, instrument, paper or writing without the owner's consent, contrary to, his authority, and with intent to convert to his own use or to the use of any other person except the owner. . . ."
The second count of the information alleged that NCC was the owner of the money, but if not the owner it was the trustee for the benefit of Stokes. In either event the unlawful conversion of the money was a single offense.
It is clear from the evidence that there was one and only one $5,000 account, the proceeds of which were obtained from Stokes for the specific purpose of complying with the statutory surety bond requirement for fund raisers. Whether it was a loan to NCC or Stokes' money held in trust by NCC is immaterial. It was a separate and distinct single fund obtained for a specific purpose. The jury by its verdict clearly found the defendant embezzled the major part of this fund. The court could and did render an intelligent judgment thereon and the conviction most certainly is a bar to a second prosecution for embezzlement or theft of the $5,000 fund obtained from Stokes and deposited in the account of NCC. The verdict is intelligible and a sound basis for the judgment of the court.
The defendant's second contention is that the evidence adduced, believed and rationally considered by the jury was insufficient to prove his guilt beyond a reasonable doubt. The heart of his contention is that Stokes loaned the money to Peters personally, and thereafter Peters, as the owner of the funds, could do with it as he pleased.
Defendant contends that repeated reference in the transcript to the fact that Stokes gave the money to Peters, e.g., "Q. Now did you give him the money? A. Yes. Q. How much did you give him? A. $5,000.00," is evidence of a personal loan.
When read together with all of Stokes' testimony the jury could believe the statements are evidence only of the fact that Stokes physically handed the check to Peters. And, as Stokes testified, the money ". . . was supposed to be used for a bond and that the State demanded a deposit of that amount of money in order to do any soliciting for the National Charity Corporation."
The defendant further contends that the fact that Peters paid the first month's interest on the loan is further evidence of a personal loan. Peters, as business manager, handled all the business matters of the corporation. He alone would perform the physical acts of paying its debts. The payment of one month's interest does not compel a finding it was a personal loan to the defendant.
It is also argued that the by-laws of the corporation gave the defendant virtually unrestricted authority to make withdrawals:
"BE IT RESOLVED That the COULEE STATE BANK in the City of La Crosse, State of Wisconsin, be and it is hereby selected and designated as the depositary of and for the moneys and funds of this corporation; that all of the moneys and all of the funds of this corporation shall hereafter be deposited in and with said Bank and that such moneys and funds may be withdrawn or charged only upon checks, orders and drafts signed by the Manager of this Corporation.
"BE IT FURTHER RESOLVED that said Bank is hereby authorized to pay any such instrument or make any such charge and also to receive the same from the payee or any other holder without inquiry as to the circumstances of issue or the disposition of the proceeds even if drawn to the individual order of any signing person or payable to said Bank or others for his account, or tendered in payment of his individual obligation, and whether drawn against an account in the name of this corporation or in the name of any officer or agent of this corporation as such."
Those sections authorized Peters to deal with the bank and it authorized the bank to honor his withdrawals without inquiry into the purpose of the withdrawal, — in effect saving the bank harmless. In no way can the sections be read as authorizing Peters to embezzle the corporation's funds.
The contention that the loan was personal is without merit. Peters wrote to Stokes on NCC letterhead acknowledging receipt of the money, signing as manager of NCC:
"This letter will serve as a receipt, or note, to acknowledge your personal check for $5,000.00. Further, as agreed the National Charity Corporation will be responsible for the return of this money within 60 days from the above date.
"Also as agreed, the NCC will pay 6% interest, each 30 day period untill [sic] the note is repaid. In addition to this interest, the NCC will also pay a bonus of $250.00 as per our verbal agreement.
"I believe that this Corporation will have a steady grouth [sic] due to the type assistance we are going to provide. I would certainly say that this money will help us to establish our Corporation with many Americans who believe as we, that Communism is indeed a serious threat to this Hemisphere.
"I hereby state that the NCC will always reflect the best interest to the need of Honorable Exiles, and hope that this Corporation will be so mentioned along with other organizations doing similar work.
"I have been granted the power to execute this letter, or note, and hereby bind the NCC to the above agreement. This letter, or note, will be so honored, when presented by you, or when the NCC can meet the obligation. As agreed, the NCC has the right to call in this letter, or note at any time according to our verbal agreement, and further to repay the loan, with proper interest, anytime before the 60 day period."
Clearly the references in the transcript to Stokes' loaning the money to Peters were references to Peters in his corporate capacity as business manager. The money was, therefore, loaned to the corporation and was in its possession prior to when Peters withdrew the funds and converted them to his own use.
In the verdict the jury found that the amount embezzled was $4,843.72. The amount withdrawn from the account as of April 4, 1965, was $4,895.12.
Defendant contends that the state has failed to establish that the defendant embezzled $4,843.72 beyond a reasonable doubt because the record contains no discernible or readily identifiable credible evidence sufficient to convince a jury that that amount was embezzled.
The record reveals that the defendant systematically reduced the NCC account in receiving the money in cash or transferring sums to his personal account which were used by the defendant to pay his personal expenses and debts.
From an examination of the record we conclude the jury could have found that the defendant embezzled the entire amount alleged in the information. The variance is slight and immaterial. The fact that the jury found a lesser amount than the proof would sustain is in no way prejudicial to the defendant.
The defendant received a three year sentence. In the theft statute, sec. 943.20 (1) (a) defines the crime of embezzlement. Value is important to the crime only with reference to the punishment. Thus, where the state has proved any one sum that would support the sentence, that sentence should stand. Where the embezzlement is complex, amounting to a myriad of transactions, some traceable and some not, the state should not be required to prove the total amount of money embezzled, but just such amount as will support the sentence imposed. As a general rule, wide latitude is allowed in proving the amount charged to have been embezzled. 26 Am. Jur. 2d, Embezzlement, pp. 596, 597, sec. 43.
Sec. 943.20 (3)(c). "If the value of the property exceeds $2,500, a fine of not more than $10,000 or imprisonment for not more than 15 years or both."
The state proved, for example, that on January 20, 1965, the defendant withdrew $3,700 from the NCC account and deposited that amount in his personal account, Exhibits 6 and 9, which at the time contained only $3.96. Within a period of seven days he reduced his personal account $662.75, paying such personal items for example as a $100 pharmacy bill and a $254 furniture bill. At no time during this period were other sums added to his personal account.
Numerous other examples could be shown, all of which amply support the amount found by the jury and the sentence imposed.
By the Court. — Judgment affirmed.