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OUJI-CR 5-20

EMBEZZLEMENT (APPROPRIATING) - ELEMENTS

No person may be convicted of felony/misdemeanor embezzlement unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, fraudulently;

Second, appropriated;

Third, personal property;

Fourth, (of value)/(valued at more than $500/$1,000/$25,000);

Fifth, of a person/(legal entity);

Sixth, to any use or purpose not intended or authorized by its owner;

Seventh, where the property was legally obtained; and

[Eighth, the property was entrusted to the defendant for a specific purpose/use/disposition, including any funds “held in trust� for any purpose].

OR

[Eighth, the defendant obtained the property by virtue of a power of attorney for the sale/transfer of the property].

OR

[Eighth, the property was controlled/possessed for the use of another person].

OR

[Eighth, the property was to be used for a public/benevolent purpose].

OR

[Eighth, the defendant diverted money appropriated by law from the purpose and object of the appropriation].

OR

[Eighth, the defendant failed/refused to pay over to the state/(Specify Other Appropriate Authority) any tax/ (Specify Other Type of Monies) collected in accordance with state law; and

Ninth, the defendant appropriated the tax/(Specify Other Type of Monies) for (his/her own use)/(the use of another person)].

OR

[Eighth, the defendant possessed the property for the purpose of transportation without regard to whether packages containing the property have been broken].

OR

[Eighth, the defendant removed crops from leased/rented premises with the intent to deprive the owner/landlord of rent due from the premises].

OR

[Eighth, the defendant fraudulently appropriated rent from leased/rented premises to himself/herself/(any person)].

OR

[Eighth, the property was possessed/controlled by virtue of a lease/rental agreement; and

Ninth, the defendant willfully/intentionally did not return the property within 10 days after the agreement expired].

______________________________

Statutory Authority: 21 O.S. Supp. 2004, § 1451.

Committee Comments

Two element instructions are given for embezzlement under section 1451 because two fact situations constitute crimes under the statute. This instruction covers the usual case in which the State will present evidence that the accused has in fact appropriated the property. The next instruction (OUJI-CR 5-21, infra) covers the case in which no appropriation has occurred but the accused has hidden the property with fraudulent intent to appropriate it at a more convenient time. Common law cases are split on the question of whether the act of hiding the property constitutes a conversion. Section 1451 explicitly resolves the question. Hence, instructions are presented to cover both situations. The trial judge should use the instruction more appropriate for the facts of the pending case.

The third element indicates that the property which is subject to embezzlement is personal property, not real property. The statutory language does not specify personal property, but merely "property." Basic research into Oklahoma cases has not revealed a case addressing this question. Only a few cases in the United States have dealt with the specific question of whether real property is covered by the embezzlement crime. See People v. Roland, 134 Cal. App. 675, 26 P.2d 517 (1933) (real property is subject to embezzlement); Manning v. State, 175 Ga. 875, 166 S.E. 658 (1932); State v. Clark, 60 Ohio App. 367, 21 N.E.2d 484 (1938) (real property is not subject to embezzlement). Even the treatise writers appear divided on the question. R. Perkins, Criminal Law 291 (2d ed. 1969) and W. Clark & W. Marshall, A Treatise on the Law of Crimes 904-07 (7th ed. 1967) imply that real property cannot be embezzled, whereas W. LaFave & A. Scott, Criminal Law § 89, at 646-647 (1972), state that, on principle, conviction for embezzlement of real property should be possible.

The Committee has concluded that real property was not meant to be included within the embezzlement statutes of Oklahoma. The Committee reached this conclusion for several reasons. First, embezzlement historically has been used to fill the gaps opened by interpretation of common law larceny. Larceny applies to personal property only because real property cannot be taken and carried away. Second, the punishment for embezzlement in Oklahoma is correlated to the punishment for larceny. 21 O.S. 2001, § 1462. Third, the common law definition is to be followed, in the opinion of the Commission, unless the Legislature has clearly indicated otherwise. If the Legislature had meant to expand embezzlement, it should have used the words "real or personal property."

The seventh element presents the concept of lawful acquisition by the person who has embezzled. If the property is wrongfully acquired initially, the crime is larceny, not embezzlement. Ennis v. State, 1917 OK CR 150, 13 Okl. Cr. 675, 167 P. 229; Bivens v. State, 1912 OK CR 11, 6 Okl. Cr. 521, 120 P. 1033; Flohr v. Territory, 1904 OK 93, 14 Okl. 477, 78 P. 565.

In light of the statutory language of section 1451, a question arises whether the Legislature intended to abolish the distinction made at common law between custody and possession. At common law if a person merely acquired custody of property, i.e., physical possession, and then converted the property, the person had committed larceny but not embezzlement. The common law reasoning is that a person who has custody does not have legal possession of the property; hence, the conversion is a trespassory taking, rather than an appropriation. Taking is an element of larceny, whereas appropriating is an element of embezzlement. R. Perkins, Criminal Law 289 (2d ed. 1969). The language of the statute is susceptible to a construction indicating that it is immaterial whether the embezzler had custody or possession when he converted.

Conflicting lines of cases decided under prior Oklahoma statutes exist in Oklahoma concerning the custody/possession dichotomy. In Cunningham v. District Court of Tulsa, 1967 OK CR 183, 432 P.2d 992, and Gibson v. State, 1958 OK CR 74, 328 P.2d 718, overruled on other grounds, Parker v. State, 1996 OK CR 19, n.4, 917 P.2d 980, 986, the distinction between custody and possession is drawn. In Smith v. State, 42 Okl. Cr. 136, 275 P. 359 (1929), the distinction is repudiated. Although Cunningham, Gibson, and Smith construe separate statutes, the language of the statutes is similar. Former section 1452 read, "in his possession or under his control"; former section 1454 read, "entrusted with or having in his control"; former section 1456 read, "has come into his control or care"; and former section 1453 read, "having under his control." The Commission has concluded that the reasoning of the court in the Cunningham and Gibson cases should be adopted when construing the embezzlement statutes in order to preserve the custody/possession distinction.

The fourth element is included to indicate whether the defendant is charged with felony or misdemeanor embezzlement and for the purposes of determining the appropriate range of punishment.

Some overlap with the larceny statutes may result from the following provision at the end of 21 O.S. Supp. 2002, § 1451(A)(7): "without regard to whether packages containing the property have been broken.â€? The common law courts hold that misappropriation of the entire package delivered to a carrier is not larceny because the carrier has lawful possession. Misappropriation of the entire package is therefore embezzlement. If the carrier opened the package and took an item in the package, however, the courts held that larceny has been committed because the carrier did not have lawful possession of the individual items in the package. This is known as the "breaking bulk" doctrine. However, under section 1451(A)(7) this latter factual situation is also embezzlement. The language of section 1451(A)(7) indicates that embezzlement is committed whether the carrier takes the whole package or individual items. R. Perkins, Criminal Law 260-62 (2d ed. 1969).

(2005 Supp.)


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