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March 21, 1957


The opinion of the court was delivered by: KEECH

This case is before the court on a motion for new trial or judgment of acquittal notwithstanding the verdict.

The defendant, Emile J. Daigle, was charged in an eight-count indictment with embezzlement, grand larceny, forgery, and uttering, in connection with the payment of certain death benefits to the widows of two firemen by him, as Secretary-Treasurer of the Firemen's Family and Fraternal Relief Association (formerly the Firemen's Family Relief Association) of the District of Columbia Fire Department. The first four counts relate to a payment due Mrs. Thrasher, and the last four counts to a payment due Mrs. Ewers.

 To summarize briefly the evidence relating to Counts 1 through 4: Mrs. Thrasher's husband died March 10, 1954. On August 12, 1954, the defendant came to her home and informed her that she was entitled to a death benefit from the Association. The defendant then had her sign a piece of paper, which was folded over and did not look like a check, paid her $ 100 cash, and said nothing about any additional sum due her. She did not recall signing any other paper on this occasion. The paper which bears Mrs. Thrasher's endorsement is a check payable to her in the sum of $ 600, dated August 12, 1954, and signed by the defendant as Secretary-Treasurer of the Relief Association, which the defendant cashed at the American Security & Trust Company on August 12, 1954. An expert witness testified that the figure '6' in the amount of the check had been raised from a '1', but could not state when the change had been made. On April 18, 1956, the defendant again came to Mrs. Thrasher's home, gave her an envelope containing an additional $ 600 in cash, stating that it was the balance of her husband's insurance and telling her to say that she had had it a long time if anyone should ask about it. Defendant then had her sign an application for death benefit dated August 12, 1954.

 The records of the Association, kept by the defendant, reflected that the death benefit of $ 600 due Mrs. Thrasher had been paid in full on August 12, 1954, as was also noted by the defendant on the back of a copy of Mr. Thrasher's death certificate, introduced as Government's Exhibit No. 11.

 Summarizing the evidence relating to Counts 5 through 8: Mr. Ewers died November 2, 1954. On April 10, 1956, the defendant came to see Mrs. Ewers at her home and stated that she was entitled to a death benefit, although she had not filed an application. Defendant then showed her a check, blank as to amount, signed by him as Secretary-Treasurer of the Association, which he had her endorse on the back, and paid her $ 100 cash. Mrs. Ewers did not understand that there was more due her. She did not recall signing any other paper. The check was cashed by the defendant at the National Bank of Washington on April 23, 1956, after the sum of $ 500 had been inserted.

 The defendant, in substance, testified that both Mrs. Thrasher and Mrs. Ewers had neglected to file applications for the death benefits due them, which according to the Association's by-laws should have been filed within a year of the deaths; that he went to see them and made a partial payment to each of them because he knew they were entitled to the money; that he made the checks out for the full amount due for bookkeeping purposes, and that he held the balance of the proceeds of each check in a safe in his home, pending receipt of the necessary papers from the applicant. He further stated that he told each of the complainants that the balance would be paid when the necessary papers were presented by her. According to defendant, the Thrasher application, signed April 18, 1956, was dated August 12, 1954, in order to avoid any question as to the timeliness of the application. He further testified that the Ewers claim and the balance of the Thrasher benefit were paid by him at that time because the Relief Association's fund was about to be taken over by the government, and he wished to clear up outstanding amounts.

 The court granted a judgment of acquittal as to Counts 3 and 4, forgery and uttering of the Thrasher check, and submitted the case to the jury on the remaining counts. The jury were instructed that if they should find the defendant guilty on either of the embezzlement counts, they need not consider the larceny count dealing with the same transaction, and the court repeated that the jury might not find defendant guilty of both embezzlement and larceny as to the same transaction.

 The case was submitted to the jury at 3:17 p.m. on the fourth day of trial. At 6:05 the jury reported to the court that they had been unable to reach a verdict on all counts, but had unanimously agreed on Counts 1 and 2. Upon the taking of a partial verdict, the jury returned a verdict of guilty as to both Count 1 and Count 2, embezzlement and grand larceny of the Thrasher funds. The court then had the jury polled on Count 1, and after the return of a unanimous verdict of guilty on Count 1, the Court, on its own motion, set aside the verdict under Count 2, directing entry of a verdict of not guilty.

 When the jury returned the following morning the court repeated its entire charge as to Counts 5 through 8. After about two hours' further deliberation, the jury returned a verdict of not guilty on all the remaining counts, which pertained to the Ewers payment.

 As grounds for his motion, defendant's counsel contends that the court erred in denying his motion to require the government to elect between the embezzlement and larceny counts, repeated at various stages of the trial; that the court erred in instructing the jury as to the effect of variance in the ownership of the funds described in the larceny counts; that the inconsistent verdict returned by the jury may not stand; that the court erred in denying his motion for a mistrial upon the jury's return of verdicts which were inconsistent and contrary to the court's instructions; and that the guilty verdict under Count 1 is contrary to the weight of the evidence and not supported by substantial evidence. Other grounds were stated in the motion, but were not pressed by counsel at the hearing thereon.

  As to the court's refusal to require the government to elect between the embezzlement and larceny counts as to each transaction, this was a matter within the discretion of trial court. Dobbins v. United States, 81 U.S.App.D.C. 218, 157 F.2d 257, certiorari denied 329 U.S. 734, 67 S. Ct. 99, 91 L. Ed. 634, and cases there cited. The prosecution seldom, if ever, is required to elect upon which of several counts charging the same offense in various ways it will stand. Fulton v. United States, 45 App.D.C. 27, 41. The two counts charged the taking of the same money in different ways, and there was evidence on which the jury might have found the defendant guilty under either count, depending upon its view of the evidence. Although the defendant clearly had control of the funds by virtue of his office in the association, because of the peculiar method by which he secured the cash proceeds of the check and covered his misappropriation of the funds, the jury might have found the taking to constitute larceny by trick from the payee *fn1" rather than embezzlement from the Association. *fn2"

 As to the court's instruction as to ownership of the funds, the court charged that although all four embezzlement and larceny counts alleged the money to be the property of the Association it would not be fatal to conviction if the jury should find the money to be that of the payee of the check. As stated in England v. United States, 5 Cir., 174 F.2d 466, 468:

 'Variance as to ownership has not the importance in federal criminal procedure which it had at common law. It now spoils a trial only when the substantial rights of the accused are impaired; and his rights to a correct accusation are generally said to be to have sufficient information as to the charge against him, and protection against being again placed in jeopardy. See Rule of Criminal Procedure 52(a) and Loper v. United States, 10 Cir., 160 F.2d 293; Phelps v. United States, 9 Cir., 160 F.2d 626, decided ...

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