APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS CRIMINAL No. 75-176
Seitz, Chief Judge, Gibbons and Hunter, Circuit Judges.
Charles Leonard was convicted of aiding and abetting Herbert Williams in embezzling some 49 rolls of chicken wire from the storeroom of the Civil Defense Office on St. Thomas. He appeals from the judgment on the verdict of guilt. For the reasons that follow, we reverse.
On August 4, 1975, one Edmond A. Penn became Director of the Office of Civil Defense and Emergency Services for the Virgin Islands. At that time, the Civil Defense Office also comprised a Deputy Director, two secretaries and a Communication Officer Technician - Herbert Williams. Upon taking over as Director, Mr. Penn was given no inventory of the Office's various emergency supplies. He asked Herbert Williams to conduct an inventory of the Office's storeroom on St. Thomas, and Williams did so during the last week of August, 1975.*fn1 According to that inventory, the St. Thomas storeroom contained some 62 rolls of chicken wire. Civil Defense kept this wire in case war or other emergency cut the islands off from normal sources of food; Civil Defense would then distribute the wire to local fishermen, who would fashion fish traps and help sustain the islands' population during the emergency.
On some nine or ten occasions in the fall of 1975, Williams entered the Civil Defense Office at night, obtained the keys to the storeroom from the filing cabinet where they were kept,*fn2 and took from two to four rolls of the chicken wire. He sold the wire to fishermen for $100 a roll, a price far below actual cost. On several occasions, Leonard, together with Williams, left the company of local fishermen and returned to the group in Leonard's taxi with chicken wire. Leonard also participated in several sales to the fishermen.
On November 23, 1975, Williams set fire to the storeroom in an attempt to conceal his misdeeds. The investigation of the fire revealed that many rolls of wire were missing. All of the Civil Defense employees were interrogated regarding the missing wire, and under questioning Williams admitted having taken it and having started the fire.
By information, Williams was charged with arson, grand larceny, and embezzlement. Leonard was charged with aiding and abetting*fn3 Williams in the commission of grand larceny*fn4 and aiding and abetting in the commission of embezzlement.*fn5
After the Government rested, both defendants moved for a judgment of acquittal on the embezzlement charges, contending that there was no evidence to support the charges. The court denied the motion. The jury found Williams guilty of arson and both Williams and Leonard guilty of embezzlement; no findings were made with respect to the larceny charge. On appeal, Leonard insists that there was no evidence to support the jury's findings of embezzlement.
Title 14, section 1089 of the Virgin Islands Code forbids embezzlement by a public officer of "any property which he has in his possession or under his control by virtue of his trust." Leonard contends that Williams - as principal - and therefore Leonard - as aider and abettor - could not be convicted of embezzlement, because the chicken wire purloined from the storeroom was not "property which [Williams had] in his possession or under his control by virtue of his trust." Because we agree with Leonard, we must reverse.
Williams obviously did not have the chicken wire in his possession, so the critical question is whether it was under his "control" by virtue of his trust. Mr. Penn testified that Williams was not authorized to place items in or remove them from the storeroom, or to exercise dominion over the contents of the storeroom in any way. Williams had been authorized, on at least one occasion, to enter the storeroom, but only for the purpose of noting the contents, not for disposing of them in any fashion. He knew where the storeroom keys were located, but so did the secretaries and part-time volunteers, who also were not authorized to use the keys without permission. Such knowledge scarcely amount to "control" over the contents of the storeroom. Moreover, Williams came like a thief in the night, entered the storeroom in the same manner as anyone who had accidentally discovered the location of the keys, and removed the wire rolls.
These facts convince us that the elements of embezzlement were not made out. Mere access to the storeroom was not sufficient to invest "control" in Williams. See, e.g., Colip v. State, 153 Ind. 584, 55 N.E. 739 (1899); Annotation, Distinction Between Larceny and Embezzlement, 146 A.L.R. 532, 569-73 (1943). Williams' crime was similar to that of a janitor, entrusted with the key to an office, who takes an item left lying on a desk. And under any statutory system that differentiates between larceny and ...