WRIT OF ERROR to the Circuit Court of Winnebago County; the
Hon. ALBERT S. O'SULLIVAN, Judge, presiding.
MR. CHIEF JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 21, 1956.
The defendant, Marven E. Riggins, was indicted in the circuit court of Winnebago County for embezzlement. (Ill. Rev. Stat. 1953, chap. 38, par. 210.) After a verdict of guilty by a jury, the court sentenced him to a term in the penitentiary of not less than two nor more than seven years.
The defendant argues for reversal on the ground that as operator of a collection agency he was an independent businessman, who at no time acted as "agent" for the complaining witness, Dorothy Tarrant, within the meaning of this embezzlement statute. However, he insists that even if he is wrong in this contention, he is still entitled to a new trial.
We consider initially the defendant's argument that he was not a member of a class designated by the statute. Only that evidence relevant to this question is stated.
At the time of the indictment (January, 1955), the defendant was the owner and operator of a collection agency in Rockford, called the Creditors Collection Service, and had been so engaged for about five years. He maintained an office, had both full and part-time employees, and during 1953 and 1954 had a clientele of some 500 persons and firms for whom he collected delinquent accounts.
In February, 1953, he called on the complaining witness, Dorothy Tarrant, who operated a firm known as Cooper's Music and Jewelry. He said he was in the collection business and asked to collect the firm's delinquent accounts. As a result, they reached an oral agreement whereby the defendant was to undertake the collections.
By this agreement, the defendant was to receive one third on city accounts and one half on out-of-city accounts. It was further agreed that he need not account for the amounts collected until a bill was paid in full, at which time he was to remit by check.
There is a conflict in the evidence as to whether the defendant was to give a check for the whole amount collected and then receive his commission, or whether he was authorized to deduct his commission and account only for the net amount due.
It was further agreed that the defendant would be liable for court costs in the event he chose to file suit on any of the accounts, but the first money collected was to be applied to those costs. If no collection was made, however, the defendant was to stand the loss.
The parties operated under this agreement for almost two years. During that time the complaining witness exercised no control over the defendant as to the time or manner of collecting the accounts, and with her knowledge he commingled funds collected for all his clients in a single bank account. He also used this as a personal account, from which he drew for business, family and personal expenses.
In October, 1954, the complaining witness became aware that the defendant had collected several accounts for her in full, but had not accounted to her. She discussed the matter with him, and he assured her that he would bring his records up to date and pay what was due. After the defendant defaulted on this promise, she made further investigations and discovered new breaches of the agreement. She had further discussions with him and received additional promises to pay up, none of which were kept. Negotiations were terminated December 14, 1954, when the defendant filed a bankruptcy petition listing Cooper's Jewelry and Music, among others, as a creditor. Thereafter, the complaining witness preferred the charges against the defendant which resulted in his indictment and conviction for embezzlement.
To decide whether the defendant, a collection agent, can be guilty of embezzlement in Illinois, it is helpful to consider our embezzlement statutes in the historical context of this crime.
Embezzlement, unknown at common law, is established by statute, and its scope, therefore, is limited to those persons designated therein. (People v. Preble, 316 Ill. 233; 29 C.J.S., Embezzlement, sec. 13.) The general objective of embezzlement statutes is to meet and obviate certain defects in the law of larceny through which many persons who misappropriated another's property escaped criminal prosecution. (18 Am. Jur., Embezzlement, sec. 2.) Thus, ...