State v. Atwood

358 P.2d 726, 187 Kan. 548, 1961 Kan. LEXIS 203
CourtSupreme Court of Kansas
DecidedJanuary 21, 1961
Docket42,007
StatusPublished
Cited by9 cases

This text of 358 P.2d 726 (State v. Atwood) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Atwood, 358 P.2d 726, 187 Kan. 548, 1961 Kan. LEXIS 203 (kan 1961).

Opinion

The opinion of the court was delivered by

Fatzer, J.:

The defendant, Warren Dewain Atwood, was charged with embezzlement as defined in the last clause of G. S. *549 1949, 21-545. The amended information alleged in substance that on November 15, 1958, the defendant was the collecting agent of R. C. Twombly, doing business as Twombly Grain Company; that by virtue of his employment he collected the sum of $744 from Hugh Gilmore in full payment and satisfaction of a debt Gilmore owed Twombly; that as a result of said collection there was due and owing Twombly the sum of $496 and that the balance thereof, or $248, represented the fee or commission due the defendant for having made the collection, and that the defendant, with intent to defraud and convert the said sum of $496 to his own use, failed and refused to deliver the said sum to Twombly upon demand. Trial was by a jury which found the defendant guilty of the crime of embezzlement, and, following the overruling of the defendant’s motions in arrest of judgment and for a new trial, sentence was imposed pursuant to G. S. 1949, 21-534 third. Hence this appeal.

Pertinent portions of the evidence are summarized: R. C. Twombly operated grain elevators at Troy and Highland under the firm name and style of the Twombly Grain Company. The elevator at Highland was managed by Harold Twombly, R. C. Twombly’s brother. The defendant was a bill collector and did business as a collection agency under the firm name and style of Adjusters of Delinquent Obligations. He lived at Elwood which is about ten miles from Troy and about twenty-five miles from Highland.

On or about August 29, 1958, R. C. Twombly contacted the defendant about collecting some of his past-due accounts. The defendant told Twombly he would collect the accounts and charge a commission of one-third of the amounts collected. Twombly turned over some accounts to the defendant and told him to go to Highland and get other delinquent accounts to collect. Twombly telephoned his brother at Highland and asked him to give the defendant some of the delinquent accounts. Among the total of nine accounts delivered to the defendant were the accounts of Hugh Gilmore and one Franken. Gilmore, a farmer and stock feeder, lived on a farm near Highland and traded at Twombly’s elevator at Highland where he owed a delinquent account in the sum of $744. The bookkeeper at the Highland elevator was Twombly’s sister and she signed R. C. Twombly’s name to a paper referred to as defendant’s Exhibit A, hereafter set forth.

The defendant went to Gilmore’s farm on September 3, 1958, and told him he was a collector and had a bill which the Twombly ele *550 vator assigned to him for collection in the amount of $744 and that if payment was not made, suit would be commenced against Gilmore. Gilmore is supposed to have told the defendant that he owed the elevator some money but there was something wrong with the bill. The defendant stated he was not authorized to correct the account, that Twombly was the only one who could do so, but that if Gilmore paid the account he would take it up with Twombly and he would refund the money if the account was not correct. The defendant also promised Gilmore he would furnish him with an itemized statement of his account. Gilmore gave the defendant his check in the sum of $744 which promptly “bounced.”

On September 12, 1958, the defendant went back to Gilmore’s farm and told him “we have got to do something about that check.” Gilmore stated he was not satisfied with the account, but he gave the defendant another check for the full amount. Upon Gilmore’s inquiry whether he had obtained the ledger sheets, the defendant stated he had not and reiterated that Twombly would have to make any correction since all he was supposed to do was to get the money, but that if the account was incorrect Gilmore’s money would be refunded. The defendant testified that he cashed Gilmore’s check the next day; that he did not deposit the money but carried it in his pocket, and that he did not tell Twombly he had collected the amount of the second check because he knew he would have to make a refund to Gilmore. He further testified that on that day or the next day he went to the Highland elevator and asked the bookkeeper if she would give him the ledger sheets; that he did not return the ledger sheets to Twombly because he did not know who they belonged to, that he supposed they belonged to Hugh Gilmore because they had his name on them, and that during the middle of September he mailed the ledger sheets to Gilmore. It should here be noted the bookkeeper denied she gave the defendant the Gilmore ledger sheets, and testified she had been unable to locate them after the defendant visited the elevator one day.

On October 8, 1958, the defendant went to Highland on some business, the details of which, or whom he was going to see, he could not remember. While seated in his car in front of a restaurant not waiting for anyone in particular, he happened to see Gilmore who told him he was not satisfied with the bill; that he had been overcharged, and the defendant and Gilmore both testified that the defendant gave Gilmore $744 in orie-hundred-dollar bills, *551 some tens and some ones, and Gilmore gave the defendant a receipt for that amount. Gilmore testified he did not contact Twombly and offer to pay him anything, but put the $744 in his pocket and spent it for expenses.

One peculiar facet of the receipt was that it was prepared in longhand by the defendant’s wife at their home in Elwood before the defendant went to Highland, notwithstanding the fact that he testified he knew nothing about the correctness of the account and despite the fact that he had told Gilmore he was just to collect the account and that any corrections thereon would have to be made by Twombly. Another peculiar facet was that Gilmore’s account with Twombly had been running since 1956; he had received monthly statements showing the balance; he had never disputed the correctness of the amount and had paid $100 in April 1957, $100 in May 1957, and had made a payment in January 1958, some eight months prior to the time Twombly turned the account over to the defendant for collection, all of which the jury apparently took into consideration.

Gilmore testified that Harold Twombly came out to see him about his account on two occasions, one being on July 17, 1959; that he told Twombly he had paid the account in full to the defendant and had his cancelled check, and that he did not tell Twombly he had been refunded his money because the Twomblys “had overcharged me, and I thought they could find it out the best way they could, they didn’t treat me right and if they wanted they could do as they please.”

In November 1958 R. C. Twombly, after hearing of the defendant’s collection from Gilmore, saw him on the street in Troy and the defendant told Twombly he had collected $300 on the Gilmore account but had not collected anything on the Franken account. When Twombly asked him to settle up, the defendant stated he did not want to settle until he made full collection. Twombly insisted on immediate settlement but the defendant said he could not settle right then but would get a check from “the company” which would take a couple of days. The defendant did not come to settle but wrote Twombly that he would come down on a certain day, but he never showed up.

On July 17, 1959, R. C.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Miller v. Miller
Court of Appeals of Kansas, 2024
State v. Hood
873 P.2d 1355 (Supreme Court of Kansas, 1994)
Bolton v. Souter
872 P.2d 758 (Court of Appeals of Kansas, 1993)
State v. Baker
819 P.2d 1173 (Supreme Court of Kansas, 1991)
State v. Berg
694 P.2d 427 (Supreme Court of Kansas, 1985)
State v. Frasher
265 S.E.2d 43 (West Virginia Supreme Court, 1980)
State v. Piper
477 P.2d 940 (Supreme Court of Kansas, 1970)
Dickens v. State
398 P.2d 1008 (Alaska Supreme Court, 1965)

Cite This Page — Counsel Stack

Bluebook (online)
358 P.2d 726, 187 Kan. 548, 1961 Kan. LEXIS 203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-atwood-kan-1961.