Opinion
No. 37020
Decided January 31, 1962.
Criminal law — Employee obtaining possession of employer's money — By trespass, larceny or false pretenses — Employee's conversion of such money to his own use — Not thereby guilty of embezzlement — Aider and abettor in obtaining such possession — Not aider and abettor of an embezzlement.
1. An employee who comes into possession of money or property of his employer by the commission of a trespass or obtains such money or property by larceny, larceny by trick, or false pretenses cannot convert or reconvert such money or property thus unlawfully obtained to his own use so as to become guilty of the crime of embezzlement.
2. One who is alleged to have aided and abetted such employee in coming into possession of his employer's money or property by the above means is not guilty of aiding and abetting an embezzlement.
APPEAL from the Court of Appeals for Mahoning County.
This cause was previously before this court upon appeal by the plaintiff, appellant herein, from a judgment of reversal by the Court of Appeals of the defendant's conviction in the Common Pleas Court upon an indictment that states in part that defendant "did aid and abet * * * Tobin * * * in embezzling and converting to his own use the personal property of * * * the employer of * * * Tobin * * * and without the assent of any owner * * * of said property * * * [defendant] did aid and abet * * * Tobin * * * in the conversion and embezzlement of certain money of the value of * * * $56,231.21 * * * which * * * had come into the possession of * * * Tobin * * * by virtue of his employment."
The previous appeal ( State v. Glaros, 170 Ohio St. 471) was upon a question of procedure, the trial court having omitted to administer to the prospective jurors before their voir dire examination the oath or affirmation required by Section 2945.27, Revised Code. It appearing that the Court of Appeals did not pass upon all the errors assigned by the defendant, because it regarded one of those assigned errors (as above mentioned) sufficient to support its judgment of reversal, the cause was remanded to that court to pass upon those assigned errors not theretofore passed upon by it.
As a result of such remand, the Court of Appeals reversed the judgment of conviction and ordered the discharge of the defendant.
The main facts in this case are not in dispute. John Tobin, Jr., was an employee of the American Automobile Insurance Company as claims adjuster in the Youngstown area. Sometime prior to and through the year 1957, Tobin with others (not including the defendant) developed and carried on an unlawful enterprise by presenting false claims for damages under insurance contracts of his employer and divided the money thus collected among those associated with him in such unlawful scheme. The manner in which the division of the money taken in such fraudulent enterprise was made or the amount received by each of the conspirators is not shown by the evidence.
The money alleged by the indictment to have been embezzled was drawn from the funds of the insurance company (Tobin's employer) by drafts signed by Tobin pretending to draw the money in the names of and to be paid directly to claimants to settle claims growing out of a feigned accident said to have been caused by the negligence of the driver of an automobile covered by an insurance contract written by Tobin's employer. The report of Tobin to his insurance company in the case here involved was of an accident (which did not happen) reported to have occurred on July 8, 1957, involving a Buick automobile owned by Milo Tilocco, which was actually covered by an insurance contract with Tobin's employer. Ten claims (nine from nonexistent persons) were fraudulently presented to the insurance company at its Cleveland office as having resulted from this alleged accident. The first draft, in the sum of $3,300, signed by Tobin, drawn on the insurance company, payable to Donald Maslowski and Sylvia Maslowski, and appearing to have been endorsed by them, was deposited to the account of Johnson Neville Company in the Mahoning National Bank of Youngstown and paid out of the insurance company's account in the National City Bank of Cleveland. Nine additional drafts in the same form were issued by Tobin, were made payable to persons (most of which were said to be fictitious) noted as those in the Milo Tilocco accident and in some cases to Allen J. Swaim, his attorney, as copayee, and in most cases were endorsed and deposited for collection by Swaim and paid in the total sum of over $56,000. Such drafts were valid for withdrawal of funds from the insurance company's bank account only when approved by the insurance company's authorized agent at the Cleveland office.
Tobin had several persons associated with him in the false claims enterprise, three of whom were Allen J. Swaim, an attorney acting in that capacity for false claimants, Paul Shade, who by his own testimony worked at creating and carrying out false accident claims, and a Dr. James W. Barnes, Jr. All have pleaded guilty to embezzlement and are now in the penitentiary.
William Glaros, the defendant, was the proprietor of a printing establishment. He was engaged by Tobin to do certain printing. Some of the printing was for personal political purposes, and some consisted of doctors' stationery and billheads, garage estimate sheets, and hospital billheads and reports, with one item consisting of a so-called corrected newspaper article about a three-car automobile accident (which did not happen) in which nine people were reported injured, it being the order of Tobin that that article should be fitted into a page of the "Youngstown Vindicator" (a newspaper published in Youngstown). The story was prepared by Tobin to simulate the alleged Milo Tilocco accident above described, as he had reported it to his company. The defendant's account with Tobin shows that from April 28, 1955, until October 31, 1955, printing for political purposes was ordered by Tobin in the amount of $253.54 and was paid for by check. In 1956, four orders for statements (for doctors), invoices and business cards showed on the account book of the defendant. The first transaction in 1957 shows credits by cash and checks paid from January 4 to February 18, building a credit balance of $287.42. On March 12, charges amounting to $275.27 for statements, "Xmas cards," political cards, windshield stickers and letterheads were made. From that time until December 31, 1957, about $2,250 worth of printing was ordered, of which amount about $600 was for printing political materials. The rest (about $1,700) shows that the charges were for doctors' stationery, billheads, hospital billheads, and reports, $75 of which was for the newspaper article of which 12 copies were furnished. Some of the doctors whose letterheads were alleged to have been printed were called as witnesses to say they had not authorized the printing furnished by the defendant to Tobin. There is no doubt that Tobin used some of this printing in carrying out his fraudulent purposes, but it is also an undisputed fact, taken from the state's evidence, that the defendant faithfully recorded every printing job ordered by Tobin in his regular bookkeeping system and noted thereon the character of each item.
In carrying out the fraudulent scheme of securing payment of nonexistent damage claims covered by insurance contracts with Tobin's employer, several companies were created whose bank accounts were used in some of the financial manipulations. These companies were Johnson Neville Company, the signature of Ralph M. Neville being the authorized one to its bank account; Custom Automobile Sales Service Company, the signature of Jay Steinberg (one of the fictitious names used in the Milo Tilocco incident) being the recorded one to this bank account; and Do All Roofing Sheet Metal Company, the signature of Al Rains being used on its bank account. Paul Shade testified that he signed the foregoing names in using bank accounts deposited under the company name indicated, and that on two or three occasions, in payment to the Glaros Printing Company, he made out checks on one or more of these accounts in the presence of the defendant.
The defendant asked for and was furnished a bill of particulars which sets out the following as the basis of the crime charged:
"1. That the defendant, William Glaros, did print a fictitious page of `The Youngstown Vindicator,' describing a fictitious automobile collision alleged to have taken place at the intersection of Salts Spring Road and Meridian Road in Mahoning County, Ohio.
"2. That the defendant, William Glaros, did print various physicians' letterheads used by John J. Tobin in perpetrating the embezzlement.
"3. That the defendant, William Glaros, did print various letterheads of hospitals, thereby aiding and abetting John J. Tobin in perpetrating the embezzlement.
"4. That the defendant, William Glaros, did print letterheads and blue backing of a court reporter, which was used by John J. Tobin in perpetrating the embezzlement."
Mr. Thomas A. Beil, prosecuting attorney, and Mr. Loren E. Van Brocklin, for appellant.
Mr. Russell G. Mock, for appellee.
The view which the majority of this court takes in this case makes it unnecessary to consider any of the assignments of error except assignment No. 2, which is that "the trial court erred in not discharging the defendant at the close of the evidence."
The opinion of the Court of Appeals, written by Judge Skeel and concurred in by Judges Hunsicker and Doyle, all sitting by assignment in the Seventh Appellate District, sets forth the elements necessary to make out the crime of embezzlement. These elements are stated as follows:
"1. The relationship of employer and employee must be established;
"2. The property embezzled (which was the property of the employer or another) came into the possession of such employee (the accused) by reason of such relationship;
"3. The accused (the employee), after coming lawfully into the possession of such property, embezzled or converted such property to his own use;
"4. With intent to embezzle or steal the same."
The opinion of the Court of Appeals states further:
"The element which is completely missing from the facts established is number two, that is, that the property embezzled came into the lawful possession of Tobin by reason of his employment. The facts on this question are likewise not in dispute. The employer of Tobin maintained a bank account in the National City Bank of Cleveland. The credit represented by this account was at all times the sole property of the American Automobile Insurance Company and in its possession. The fact that Tobin could draw some part of the funds to settle a particular case with the consent of the employer-depositor, transferred no part of the account to Tobin. The fact is that when a draft was accepted by the payee, under the clear and uncontroverted facts here presented, it was the intention of the parties to such transaction that the credit represented by the draft, if used as intended, was to become the property of the payee (claimant) when presented for payment. If the action of the payee (fraudulently designated) in accepting the draft was to procure the funds of his employer by fraud whereby the credit was, in fact, transferred to the control of the drawer, a trespass was clearly committed in acquiring possession of the amount of the draft by the drawer and the crime committed would be larceny by trick as defined by Section 2907.21, Revised Code, or obtaining money by false pretenses, as defined by Section 2911.01, Revised Code. In such case, each draft used * * * would constitute a separate crime.
"There is not a scintilla of evidence in this record that the taking of the insurance company's funds by Tobin was accomplished in the course of Tobin's authorized employment."
With the above statement of the law, as applied to the facts as shown in this case, the majority of this court is in complete agreement.
Embezzlement is defined by Section 2907.34, Revised Code, as an act by which an "employee * * * shall embezzle or convert to his own use, fraudulently take or make away with, or secret with intent to embezzle or convert to his own use, anything of value which comes into his possession by virtue of his * * * employment." Since, under the facts as shown by the record in this case, Tobin was not guilty of embezzlement, the defendant herein is not guilty of aiding and abetting such an alleged crime.
The part that Tobin's employment by the insurance company played under the facts here presented was to enable him to steal his employer's funds without immediate detection. One who commits a trespass in securing the possession of the property of his employer with intent to steal or convert the same to his own use commits larceny and not embezzlement. Tobin, having come into possession of these funds by illegal, fraudulent or unlawful means constituting a trespass, could not again convert the money already in his possession so as to commit an embezzlement. A thief cannot become an embezzler by using the property he possesses as a result of the theft, even though he was an employee of the owner of the stolen money.
For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
TAFT, MATTHIAS and BELL, JJ., concur.
HERBERT, J., not participating.
ZIMMERMAN, J., sitting in the place and stead of WEYGANDT, C.J.
YOUNGER, J., of the Third Appellate District, sitting by designation in the place and stead of ZIMMERMAN, J.