Opinion
No. 78-315
Decided May 10, 1979. Rehearing denied June 7, 1979. Certiorari denied August 13, 1979.
Former regional planning director for two local criminal justice advisory councils appealed his conviction of embezzlement of public property.
Affirmed
1. CRIMINAL LAW — Federal Funds — Awarded State — Deposited in State Treasury — Public Moneys — For Purposes — Embezzlement Statute. Federal funds from the Law Enforcement Assistance Administration which are awarded to the state to assist with state crime prevention and control and are transmitted to the state and deposited into the state treasury for disbursement at both the state and regional levels of the criminal justice program are public moneys of the state within the meaning of statute concerning embezzlement of public property.
2. Jury Instructions — Advised of Principle — Embezzlement of Public Property — Property Put To Use — Knowingly — Manner Not Intended — Adequate. Where jury instructions, taken as a whole, sufficiently advised the jury of the principle that for embezzlement of public property to have occurred the property must have been put to use by the defendant in a manner he knew was not intended by the state, the instructions adequately set forth the elements of the offense charged.
Appeal from the District Court of La Plata County, Honorable William S. Eakes, Judge.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Mary J. Mullarkey, Assistant Attorney General, for plaintiff-appellee.
Keller, Dunievitz Johnson, Alex Stephen Keller, for defendant-appellant.
Defendant, former regional planning director for two local criminal justice advisory councils located in Durango and Montrose, was charged with embezzlement of public property in violation of § 18-8-407, C.R.S. 1973. Defendant appeals from his conviction. We affirm.
Section 18-8-407, C.R.S. 1973, provides that:
"Every public servant who lawfully or unlawfully comes into possession of any public moneys or public property of whatever description, being the property of the state or of any political subdivision of the state, and who converts any of such public moneys or property to his own use or to any use other than the public use authorized by law is guilty of embezzlement of public property."
Defendant first contends that the funds which were the subject matter of the charge were funds of the federal government and not public moneys of the state within the meaning of this statute, and that therefore he could not be guilty of the offense charged. We disagree.
Defendant's argument is premised on the fact that the funds involved were federal funds from the Law Enforcement Assistance Administration (LEAA) which had been awarded to the state to assist with state crime prevention and control. Contrary to defendant's argument, however, the federal origin of these funds does not rob them of their characteristic as "public moneys . . . of the state."
The purpose of the statute is to prevent the intentional misapplication of public funds for private gain by those officers entrusted with the responsibility for the correct disposition of the moneys. See People v. Schneider, 133 Colo. 173, 292 P.2d 982 (1956). See also 2 R. Anderson, Wharton's Criminal Law Procedure § 553 (1957). Qualified ownership of funds by the state is sufficient to support a charge of embezzlement. See Price v. People, 78 Colo. 223, 240 P. 688 (1925). And qualified ownership may be shown where the money is held in trust by the state. See Starr v. People, 113 Colo. 268, 157 P.2d 135 (1945). Therefore we hold that federal moneys deposited into the State Treasury are public moneys of the state within the meaning of the statute.
[1] Testimony in this case indicated that the federal funds were transmitted to the state and deposited into the State Treasury for disbursement at both the state and regional levels of the criminal justice program. After the state Division of Criminal Justice reviewed each regional request for funds to cover local expenditures, a warrant was drawn on the State Treasury and issued to regional offices. There was thus ample evidence for the court to rule as a matter of law that the funds which defendant misappropriated for his own use were public funds within the meaning of § 18-8-407, C.R.S. 1973.
Defendant next argues that the trial court erred in instructing the jury as to the intent required to support an embezzlement conviction. In essence, defendant is objecting to the omission of an instruction that the requisite intent for embezzlement is the intent to convert the property without the consent of the state. We find no error.
[2] One instruction given informed the jury that one of the elements of embezzlement is "intentionally converting any such public property to his own use or any use other that that authorized by law." (emphasis added) A subsequent instruction elaborated on the definition of specific intent. The instructions thus sufficiently advised the jury of the principle that the property must have been put to use by defendant in a manner he knew was not intended by the state. See People v. McKnight, 39 Colo. App. 280, 567 P.2d 811 (1977). When all the instructions are read as a whole they adequately set forth the elements of the offense charged. Therefore, we find no error in the instructions as given. People v. Crawford, 191 Colo. 540, 553 P.2d 827 (1976).
Judgment affirmed.
JUDGE BERMAN and JUDGE VAN CISE concur.