Urciolo v. State

Menchine, J., delivered the opinion of the Court. Raphael Urciolo was tried and convicted of embezzlement in a non-jury trial in the Circuit Court for Howard County after removal from the Circuit Court for Anne Arundel ¹²⁵ County. At that trial he was found not guilty of: (1) larceny after trust; (2) grand larceny; (3) conspiracy to commit larceny after trust; (4) conspiracy to commit grand larceny, and (5) conspiracy to embezzle. The present appeal, accordingly, deals exclusively with his conviction for embezzlement.

Under the indictment for that offense it was charged that the appellant: “Did feloniously embezzle from John Rogers miscellaneous United States currency of the total value of $7500.00.” The charge arose out of one of the transactions relating to a tract of land fronting on Waugh Chapel Road in Anne Arundel County. While we need not detail in full the complex background of that property (described by the Court of Appeals as an “episodic maze of facts;” 1 an “intricate webb of evidence;” 2 and “labyrinthine facts” 3 ) it is necessary to discuss some of the circumstances leading up to a settlement for that property from which the charge arises. Raphael Urciolo, at the recommendation of a priest who was a mutual friend, was engaged by one John J. Rogers to assist in legal proceedings involving the property. Rogers had purchased the land at a tax sale many years before.

Heirs of the former owners, claiming title to the property, had filed an action to set aside the tax sale and deed. That litigation was terminated, on the face of the proceedings, by passage of a decree that sustained the bill of the heirs of the former owners and declared Rogers’ tax sale title invalid. In actuality, the parties submitted to the passage of that decree after agreeing to a settlement whereby Rogers and the disputing heirs would become co-owners of the property. An agreement, executed on September 17, 1964, provided that title to the land would be taken by Thomas E. Chance (as trustee for the heirs) and by Joseph J. Urciolo (as trustee for Rogers).

The agreement provided further that the deed to be executed pursuant to it should appear to be an absolute ¹²⁶ conveyance in fee simple without disclosure of the fiduciary status of the grantees. On March 24, 1965 a deed was executed and recorded vesting record title in Thomas E. Chance and Joseph J. Urciolo. “as joint tenants and not as tenants in common.” This unusual course apparently was followed because. Rogers previously had executed on September 23, 1963 an option contract of sale to one McGinnis deemed by the principals to be unfavorable to their interests. 4 Joseph J. Urciolo and Chance, immediately upon expiration of the option date fixed in the McGinnis contract, entered into a contract of sale of the property to Frank Calcara for $94,600.00. (The McGinnis option was for $50,000.00.) The Calcara contract thereafter was assigned to John V. Arban, Pascal della Badia and Florence E. Urciolo and in due course settlement under it was effected in the office of Winson G. Gott, Jr., Esquire, in Annapolis, Maryland.

Appellant was in attendance at that settlement. Events occurring in and subsequent to that settlement resulted in Raphael Urciolo’s trial and conviction. On May 26, 1965 Chance and Joseph J. Urciolo executed a deed of the property to John V. Arban, Pascal della Badia and Florence E. Urciolo, in fee simple. A purchase money mortgage in the amount of $70,600.00 was given by Arban, et al. to Chance and Joseph J. Urciolo.

At the trial below exhibits “6a” (memorandum of settlement dated May 24, 1965); “6b” (memorandum of settlement dated May —, 1965); “6c” (a document dated June 12, 1965) were received in evidence. Exhibit 6a indicated a purchase price of $94,600.00, provided by a purchase money mortgage for $70,600.00, with the balance paid in cash. Exhibit 6b, with the heading “May —, 1965”, indicated that payments by buyers shown on exhibit 6a consisted in part of deductions totaling $9616.75, of which $9460.00 ¹²⁷ represented broker’s commissions to Urciolo Realty Company. That exhibit then showed that the remaining balance of payments by buyers ($14,383.25) was distributed to Chance ($7191.63) and to Joseph J. Urciolo ($7191.62).

(A footnote to the supposed distribution to Joseph J. Urciolo indicated deductions therefrom: for trustee’s commissions to himself ($2365.00); for fees to Urciolo and Urciolo ($600.00); and for fees to Winson G. Gott, Jr. ($500.00). The exhibit thus indicated a reduced distribution to Joseph J. Urciolo of $3726.62. State’s exhibit 6c, dated June 12, 1965, showed that the buyers paid a lesser sum (in cash and deductions) than was indicated in the earlier settlement sheets (exhibits 6a and 6b) and than was required by the terms of the contract of sale. That exhibit indicated that buyers had paid only $10,300.00 in cash, (instead of $14,383.25) of which $7191.63 was paid to Thomas E. Chance, and $1319.84 paid to Winson G. Gott, Jr. for settlement costs and fee.

Exhibit 6c ended with the notation: “Balance on hand — check herewith for $1788.53.” At the settlement a purchase money mortgage executed by Arban, Pascal della Badia and Urciolo to Joseph J. Urciolo and Thomas E. Chance, in the amount of $70,600.00, was duly recorded among the Land Records. A letter written by Winson G. Gott, Jr. reads as follows: “June 10,1965 Urciolo & Urciolo Counselors at Law 421 Fourth Street, N. W. Judiciary Square Washington 1, D.C. Attention; Mr. Raphael G. Urciolo Dear Raphael: Have just received the Deed from the Clerk of Court after completion of indexing and recording and am enclosing same herewith. ¹²⁸ Will send the balance of funds on hand and title policy. As stated to you, we were satisfied with the heirs of Queen and the judgments were not against the parties in title, the only exceptions being the Sanitary Commission Easement, the usual exception as to matters of survey and as my title examiner informed me of the recording of the McGinnis contract, an exception as to the effect, if any, of said contract, recorded after its expiration date. Sincerely yours, Winson G. Gott, Jr. Enc.” It is noted that this letter bore the date June 10, 1965.

The letter clearly indicates that settlement for the Waugh Chapel Road property was final in nature and implied a future transmittal of the “balance of funds.” It is to be noted also that the partial settlement sheet (Exhibit 6c) bears the date June 12, 1965. The check issued by Gott to appellant as attorney also bears that same date. That check for $1788.53, drawn on the Maryland National Bank, Annapolis, Maryland was made payable to Raphael G. Urciolo, Attorney but bore the notation “John J. Rogers and wife.” It was deposited in the personal bank account of Raphael G. Urciolo and Florence E. Urciolo in the National Bank of Washington, in the District of Columbia, on June 21, 1965 and in due course was paid by the Maryland National Bank in Annapolis, Maryland on June 23, 1965. Rogers never received the check or its proceeds.

Rogers was not informed until 1968 of the fact of settlement; nor of the fact of the execution of a deed; nor of the fact that a mortgage to Joseph J. Urciolo and Chance had been executed and recorded. He was then so advised by new counsel. The purchase money mortgage was not assigned to Rogers until separate litigation compelled it. 5 ¹²⁹ In 1965 John J. Rogers was 66 years old. His formal schooling had ceased in the sixth grade.

It is clear that he reposed trust and confidence in Raphael Urciolo as his representative and agent. Raphael Urciolo was a member of the Bar of the District of Columbia actively engaged in the real estate business. There was testimony (denied by appellant) that Raphael Urciolo had threatened to keep the property in active litigation “until Rogers died.” There was also testimony that appellant falsely stated to Rogers (after discovery by the latter that the property had been deeded to Arban, et al) that Chance had not received any money from the settlement of the property in 1965. The above recited evidence must be considered in the light of the circumstance that the course followed by appellant had removed any evidence of title in Rogers, legal or equitable.

The deed and the mortgage upon their face evidenced ownership in persons other than Rogers. Appellant thus states the questions here presented: “1. Whether the Maryland courts had territorial jurisdiction to indict and punish for the alleged embezzlement of a check which had been received and appropriated by the accused outside the boundaries of Maryland. 2. Whether there was a fatal variance between the indictment’s allegation of embezzlement of United States currency and the resting of the verdict on a finding of embezzlement of a private check. 3.

Whether the evidence is insufficient to support a conviction for embezzlement of the check. 4. Whether the indictment was defective (a) for failing to allege an offense, (b) for failure to aver the ownership of the property allegedly embezzled.” Jurisdiction Appellant’s contention that there was no receipt or appropriation in Maryland is factually overstated. ¹³⁰ A permissible inference arises from the personal attendance of appellant at the settlement; from the letter from Gott to Raphael Urciolo, coupled with Exhibit 6c; and from the date and form of the check itself that appellant had designated Gott as his agent to deliver the check into his possession. While it is not clear from the testimony whether Urciolo received the check from Gott personally in Anne Arundel County or through the mail, in our view it is immaterial here which course produced delivery to the appellant. In Simmons v. State, 165 Md. 155 , 167 A. 60 a case involving a charge of obtaining money by false pretenses wherein the evidence showed that “the money did not pass from the possession of the bank to the actual possession of the traverser, the money of the bank was so situated that the bank could and did make a complete transfer of the money to the traverser without actual delivery to him.” On those facts it was said at page 163 [63]: “The bank was made the innocent agent of the traverser to pay to the parties indicated for the traverser’s use and benefit the several sums of money agreed to be paid by the bank, for the traverser.

The passage of the title, possession and control of the money from the bank to the indicated third parties at the traverser’s request, or in accordance with his written order, was an obtaining of the money by the traverser as fully and completely as if the physical delivery had been made to the traverser in person.” One of the cases cited in support of the principle announced in Simmons, supra, was Commonwealth v. Wood, 8 N. E. 432 (Massachusetts), wherein the Supreme Judicial Court of Massachusetts had thus declared and resolved a similar issue at page 434: * ‘The defendant asked the court to rule that, upon the evidence, ‘the offense was not complete in this commonwealth, and, even if complete, defendant ¹³¹ could not be convicted in this county,’ which ruling the court refused. It appears by the bill of exceptions that ‘the government introduced evidence tending to prove the representations alleged at Berlin; that they were false, and known to be so by the defendant; and also that the purpose of the defendant in making them was as alleged in the indictment; and that, in consequence thereof, Peters was induced to send a cashier’s draft for the amount named, of which a copy is inserted in the indictment, to the defendant, at New York, being directed so to do by a note written by defendant, and left at Peters’ place of business in Boston.’ Although the defendant received the money on the cashier’s draft in New York or in Minneapolis, it cannot be doubted that the offense charged in the indictment was accomplished and completed at Berlin when Peters, at the request of the defendant, sent him the draft, whether he sent it by the hand of an agent of the defendant, or deposited it in the mail. The exceptions do not show how he sent it; but, if he sent it by a carrier or other agent of the defendant, the delivery to the agent was a delivery to the defendant. Com. v. Taylor, 105 Mass. 172 .

So, if he sent it by mail, when he deposited it in the post-office it passed out of his control into the control of the defendant, and the postmaster was the agent of the defendant to forward the letter to him. Regina v. Jones, 1 Eng. Law & Eq. 533; S.C. 4 Cox, Crim. Cas. 198.” Carter v. State, 85 S. E. 884 (Georgia) factually is similar to the subject case.

There it was said at page 887: “Furthermore, the defendant requested the cashier to send him the stock certificates. This general direction amounted to an instruction to the cashier to select any proper agency to convey the shares to him. When the cashier deposited the package with the stock certificates in the mail, he was acting ¹³² according to the president's instruction. Thus another agency of the president’s choosing delivered, in Gilmer county, the bank’s stock to the mails.

Certainly some offense was committed in Gilmer county; and it would be absurd to say that a crime was committed in Gilmer county if there was no one criminally responsible for it. The reasoning of Judge Beardsley in People v. Adams, 3 Denio (N.Y.) 190, 45 Am. Dec. 468 , on the liability of a person concocting a crime in one state, and consummating it in another by innocent agents acting under his authority, to be prosecuted therefor in the courts of the latter, is unanswerable. He said: ‘For all civil purposes a person out of this state may act by procuration within its limits, and thus, although absent at the time, he may become subject to the state law.

Rights may thus be acquired by the absent party, as he may also become civilly liable under the law of this state, for what is done here by his authorization and procurement. The individual remedy in such case is perfect; and, if the criminal law of the state is thus violated, why should not the absent offender be responsible criminally, when afterwards found within the state? In authorizing another to act for him, the principal so far voluntarily submits himself to the law of the place where the authorized act is to be performed. This is confessedly so for all civil purposes.

If an act thus authorized results in wrong to an individual, his right to redress against the principal, though absent, is undoubted. As to the person injured, the local law was violated by the absent wrongdoer: and, if the act done was also a violation of the local criminal law, is the author and procurer of the deed guiltless? Does the law hold him to have been within its ¹³³ jurisdiction so far as respects the civil remedy, but not for the purpose of punishment? I see no ground on which the distinction can be sustained.

An absent party procures an act to be done within this state, and, so far as respects criminal or civil responsibility, I think he should not be allowed to say he is not amenable to the law. He clearly would be so if the act had been done by himself in person within the limits of the state, and it is precisely the same if done by an innocent agent.’ We think, both on reason and authority, this question should be answered in the affirmative.” Thus, under its facts, the subject case falls clearly within the decision in Peddersen v. State, 223 Md. 329, 335 , 164 A. 2d 539, 543 , wherein it was said: “Since it is fundamental that an intent to appropriate money or property is a vital element of the crime of embezzlement, the courts are often faced with the difficulty of finding a clear showing of intent when there is no proof of an unequivocal act of appropriation within their jurisdiction. That problem was stated and succinctly dealt with in People v. Brock, infra, where it was said (at 70 P. 2d 214 ): ‘Obviously the intent which accompanies the formation of a plan to do an act is inherently difficult to prove by direct evidence. The act itself together with the circumstances surrounding its execution must generally form the basis from which the intent may legitimately be inferred.’ In addition to the law writers, the cases in other jurisdictions have long supported the rule that it is not necessary for the actual act of appropriation to occur within the territorial jurisdiction of the court if the essential element of fraudulent intent can be shown to have been formed either in the county ¹³⁴ where the property was received or in the county in which the property was possessed.

Among these are Brown v. State, 4 S. W. 588 (Ct. App. Tex. 1887) [since the defendant may not have conceived the fraudulent intent to appropriate the money to his own use ‘until the very moment when he denied having received it,’ he was properly indicted in the jurisdiction where he denied its receipt]; State v. Sullivan, 21 So. 688 (La. 1896) [a defendant who conceived an intent to fraudulently appropriate jewelry in the place where it was received, and, in furtherance of that intention, took it to another place to dispose of it,