Couture v. State

Orth, J., delivered the opinion of the Court. The appellant was found guilty at a court trial in the Circuit Court for Baltimore County of embezzlement and sentenced to be confined to the jurisdiction of the Department of Correction for the term of 5 years. He contends that the evidence was not sufficient to sustain the conviction. The contention involves the fine legal distinction between embezzlement and larceny and other lar ²⁷¹ cenous takings which has presented a dilemma to trial and appellate courts in all those jurisdictions in which such unlawful appropriations have been maintained as separate and distinct crimes.

The crime of which the appellant was convicted is that proscribed by Md. Code, Art. 27, § 129. We said in Gordon v. State, 5 Md. App. 291 , 303: “Embezzlement is a statutory offense designed to penalize those fraudulent conversions of money and other personal property which could not be prosecuted at common law as larceny because there was no trespassory taking. See Clark & Marshall, Crimes, (6th Edition) Section 12:-18; Wharton’s Criminal Law & Procedure (Anderson Edition), Section 514. While the crime in general consists of the fraudulent appropriation of personal property by a person to whom it has been entrusted, League v. State, 1 Md. App. 681 , where an embezzlement statute such as Section 129 applies only to designated persons occupying particular relationships, it is essential in proving the offense to show the existence of such a relationship so as to bring the accused within the ambit of the statute.

See Clark & Marshall, Crimes, Section 12:22, and Wharton, Section 514, and cases there cited. “By its express terms, Section 129 requires proof that the accused (a) was employed as a cashier, servant, agent, clerk or officer by a person or body corporate; (b) that in such capacity he received personal property ‘for or in the name or on account of his master or employer’; and (c) that he thereafter fraudulently embezzled such property. The statute does not require that the embezzled property be entrusted to the accused directly by the master or employer; it may be entrusted by another person on his behalf.” ²⁷² Larceny is the physical taking and asportation, animus furandi, of personal property of another from the actual or constructive possession of the owner. Loker v. State, 250 Md. 677, 686-687 , citing Brown v. State, 236 Md. 505, 513 . Embezzlement is the fraudulent appropriation of personal property by a person to whom it was entrusted either by or for the owner.

Perkins, Criminal Law, (1957), ch. 4, § 3B, p. 243. Stated simply the distinction between the two crimes is that in larceny the taking is by a trespass, actual or constructive, while in embezzlement the original taking was lawful. Trespass is not required in embezzlement, its place being supplied by the relation of trust and confidence between the parties. Clark & Marshall, Law of Crimes, 6th Ed., § 12:18, p. 799.

The appellant was charged with embezzling $889.56 from Shell Oil Company, t/a Pulaski Highway Shell, on 19 May 1968. The only evidence in the case was the testimony of Roland W. Miles, “an assistant branch manager for Employers Overload Company, who is a temporary labor contractor or sub-contractor for the Shell Oil Company.” In that capacity, since 2 May 1968, he operated a station for Shell Oil Company of Maryland located' at 9605 Pulaski Highway in Baltimore County, trading under the name “Pulaski Highway Shell.” The appellant was in his employ “as manager of the unit.” As such, the appellant’s duties were “daily bookkeeping, running the station, cleanliness, driveway service, handling all books, deposits, money, credit cards, anything.” He was so working on 19 May. The handling of funds received by the station was his sole responsibility; “just after each shift, each man would clean out, and then all the money would be either deposited or turned over to the manager.” Miles testified: “Well, on that Monday there, (20 May 1968) I went down to the station, and I talked with Mr. Couture about seeing how everything was going — I periodically check the stations — due to ²⁷³ the fact that he was a new man and he wasn’t too familiar with the book work, so I had worked with him prior to this and tried to train him on this, which I do with other managers. I questioned Mr. Couture about the weekend receipts, and he informed me that they were in the bank, and the paper work was not made up for the 18th or the 19th; the 17th’s paper work was finished by Mr. Couture.

As I stated, the 18th and 19th was not, and he informed me that he would make them up, and the money was in the bank, the night depository was in the bank, so I left it go at that. * * * After that I left the unit. Mr. Couture was there, and he informed me that he would finish the book work and go to the bank the next day and make a deposit. The next morning the attendant due to report there at 7:00 o’clock, along with Mr. Couture, showed up and called me and told me that Mr. Couture had not showed up. I waited to hear from Mr. Couture.

I did not hear from him. I did not have any contact from anybody in regard to him, so I left it go by. I thought, maybe, he was in sick and couldn’t get in touch with me. The next day I waited for him to come in, and he didn’t show up.

I went down there the next morning, down the bank, and the teller down the bank told me * * What the teller told him was stricken on objection. Miles then explained the records maintained by the station manager. “This report here is a B-9 sale, they call it. What it shows, it shows the whole day’s business combined for the whole day. We run three shifts, 7:00 to 3:00, 3:00 to 11:00 and 11:00 to 7:00, and it is combined into one, and it is the responsibility of the manager to fill this report out and deposit all the moneys what is supposed ²⁷⁴ to be there and credit cards, and mail the report away and mail the credit cards away to certain locations where they go.” They are kept daily, made up for the business transacted the day before.

The report for 17 May was made out by the appellant. “When I was down to see him on the Monday there, he was two reports behind” for 18 and 19 May. Miles said: “I reconstructed, due to the fact that there were no records there in the station except for the copies of these here, I took the closing meter readings from the 17th’s report, and they would be the opening meter readings for the 18th and 19th — I had to combine them — and then the closing meter readings for the 20th, and figured out my sales, and worked it up from there. * * * And took — found out how much motor oil was served and worked up the sales sheet from there.” He arrived at how much motor oil was served by what other men in the station said and took an inventory, arriving at the oil consumption — “This was what was gone. Now, there was another shortage which is irrelevant to this case altogether, and we knew how much this was, and this is how we subtracted this from that, and that is how we came up where we was going.” He explained this by stating he took the closing oil figure from the report of 17 May, took an inventory of the oil on hand and determined that on 18 and 19 May five and three quarters gallons of oil were used. Apparently the gasoline used was ascertained from meter readings and was found to be 146 gallons.

Asked “what was the actual value of that”, he said, “The total was seven ninety-eight eighty three”. Asked shortly thereafter what was the total sum involved he said that it was $798.88 on the gasoline and motor oil. 1 He also said that each shift started with petty cash ²⁷⁵ of $50 charged to the manager; “I bring him the money * * * nobody else becomes involved in this, just the manager alone.” When the appellant did not show up for work Miles went over the records and found receipts for the petty cash. The petty cash and the money for the gasoline and oil totaled $889.56. Miles said this money was not deposited in the bank to his account.

Up to 6 May, while the appellant was “in training” Miles made the deposits. From that point on it was the responsibility of the appellant to make them. The $889.56 representing receipts for 18 and 19 May had not been deposited, 2 although the appellant had told him on 20 May that it was in the bank. On cross-examination it was elicited that the station was worked in three shifts, 7:00 to 3:00, 3:00 to 11:00 and 11:00 to 7:00, each of which was the responsibility of the appellant.

The money received by “the 3:00 to 11:00 shift” was not turned over to him. “It is supposed to be deposited in the bank, but Mr. Couture informed the men not to deposit it. * * * On the 3:00 to 11:00 shift it is either deposited in the night depository or is turned over to the 11:00 to 7:00 to give to the manager the next morning.” Miles had no records with respect to “the 3:00 to 11:00 shift — Mr. Couture had them in his car, I guess.” At the end of each shift “the meters are taken, everything is counted, inventoried, and all the sales are totaled for that period” by the attendants on duty at that shift. “Then the money is supposed to be put in the night depository, and the next day the manager goes up to the ²⁷⁶ bank and pulls the money out and makes up — deposits it, and makes his total deposit * * * when we put it in a night depository, it doesn’t get deposited until the next day.” That was the practice with the first shift — 7:00 to 3:00 and the second shift — 3:00 to 11:00 and the third shift — 11:00 to 7:00. The manager goes to the bank each morning and makes the deposit for the final report. The cash from each shift is put in a bag provided by the bank, “a regular bank bag” with the account identification number on it “SI 201.” The bag is locked and “stays locked until the next morning when the manager comes and opens it up and makes his deposit.” So when the manager went to the bank there should be three bags which had been placed in the night depository. “But Mr. Couture was not having the man make the deposits at nighttime” — the 3:00 to 11:00 and the 11:00 to 7:00 shift. The 3:00 to 11:00 shift was turning the money over to the 11:00 to 7:00 shift and “then it would be turned over to Mr. Couture, and Mr. Couture on the 7:00 to 3:00 shift was also supposed to deposit his money, which he did not.” Miles did not have a shift check sheet for 17 May — '“they were in the station.

They were gone with the records.” Nor did he have one for 15 May. They were supposed to be kept in a folder in a drawer in the station. The other shortage to which Miles had referred in his direct testimony involved another employee. “It was in mileage money they had. They were giving away dollars, and you know, stuff like that.” The appellant was also supposed to keep an “E. K. Williams book”; a record that stays in the station; “it is what they make these up off of”, (apparently the reports).

It was also gone. On 20 May the appellant told Miles everything was fine, no problems but “I asked him * * * about his book work being done, and he informed me it wasn’t done.” Miles said the bank deposit slips came in four parts. “The Teller keeps two, we mail one to New York and one stays in the station.” Apparently there were none found in the station for 18 and 19 May..- ²⁷⁷ The appellant was convicted under the first count in the