Opinion
No. 77-982
Decided October 19, 1978. Rehearing denied November 16, 1978. Certiorari denied February 26, 1979.
Premised on his failure to remit his customer's insurance premiums to insurance company, insurance broker was convicted of theft, and he appealed.
Affirmed
1. CRIMINAL LAW — Insurance Broker — Took Premium Check — Did Not Forward — — Insurer's Portion — Did Not Reveal Transaction — Evidence Sufficient — Support — Theft Conviction. Where, in theft prosecution, the defendant, an insurance broker admitted taking check for insurance premium from his customers, admitted that 60% of it was not his, but rather was to be forwarded to the insurer, and admitted that he gave the check to his uncle because his bank account had been attached, where his uncle deposited the check in his account and disbursed money to the broker as he asked for it, and where the broker admitted that he did not issue a certificate of insurance to his customers and did not notify the insurer of the transaction, such transaction coming to light only by chance some 19 months later; held, the evidence was sufficient to support the conclusion that the broker intended to permanently deprive the insurer of its money, and that thus he was guilty of the crime of theft.
Appeal from the District Court of the City and County of Denver, Honorable Howard M. Kirshbaum, Judge.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Linda Palmieri Rigsby, Assistant Attorney General, for plaintiff-appellee.
Stephen C. Rench, for defendant-appellant.
The issue in this appeal is whether the failure of an insurance broker to forward to his insurance company premiums he collected from others can serve as the basis for criminal, as well as civil, liability. We conclude on the facts present here, that such acts can serve as a basis for a criminal prosecution and therefore affirm the judgment entered on a jury verdict convicting defendant Alton Hallman of the crime of theft.
Hallman worked as an insurance broker for Bankers Union Life Insurance Company. He wrote credit life and disability insurance on loans for recreational vehicles purchased at Mitchell Sons.
Bankers Union had issued a master policy to Mitchell Sons. When a buyer of a recreational vehicle wished to secure loan insurance, the premium amount was added to the vehicle's cost and paid to Mitchell Sons by the buyer's lending institution. Mitchell Sons would then deduct 20% of the premium for their fee and send a check for the balance to Hallman. Hallman would deduct 20% as his commission and send the remaining 60% to Bankers Union. Upon receipt of the premium check from Mitchell Sons, Hallman would issue the buyer a certificate of insurance based upon the master policy.
In April 1974, Faye and Richard Green purchased a camper-trailer from Mitchell Sons and arranged for credit life and disability insurance. In November 1975, Mr. Green filed a claim under the policy. At that time it became apparent that Hallman had not sent the money for the premium to Bankers Union, nor had he issued the Greens a certificate of insurance. Later, the Insurance Commissioner ordered Bankers Union to pay the Greens' claim. Hallman was charged with theft of approximately $600, the 60% of the premium payment due Bankers Union.
Hallman contends he owes merely a civil debt to Bankers Union because he did not have the requisite criminal intent to permanently deprive others of their property as required by the statute. See § 18-4-401(1)(a), C.R.S. 1973 (subsequently amended — see § 18-4-401(1)(a), C.R.S. 1973 (1976 Cum. Supp.). According to his employment contract, he was to remit the premium payments to Bankers Union by the 10th of the month after the buyer paid for the insurance. Bankers Union had allowed him to be late on numerous prior occasions by as much as six months. Hallman contends that he intended eventually to pay in this instance, but due to financial difficulties, bordering on bankruptcy, he did not have the money to do so.
[1] Taking the evidence in the light most favorable to the prosecution, People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973), the jury could properly conclude that Hallman had the necessary intent. Intent may be inferred from the facts of each case. People v. Becker, 187 Colo. 344, 531 P.2d 386 (1975). Hallman admitted taking the check, that 60% of it was not his money, and that he gave it to his uncle because his bank account had been attached. His uncle deposited the check in his checking account and disbursed money to Hallman as Hallman asked for it. Hallman admitted that he did not issue a certificate of insurance to the Greens, nor did he notify Bankers Union of the Greens' insurance transaction. It came to light by chance when the Greens filed their claim 19 months later.
Hallman argues that the evidence was not sufficient to support the conclusion that he intended to permanently deprive Bankers Union of its money. We do not agree. The case of People v. McClure, 186 Colo. 274, 526 P.2d 1323 (1974), relied upon by Hallman, is distinguishable. There, the defendant's specific intent to permanently deprive airline ticket buyers of their money was negated by the fact that he was unable to deliver the tickets at the agreed time, three weeks after accepting their check, because he was in jail on an unrelated charge. In contrast, Hallman withheld the premium for 19 months.
Nor does Kelley v. People, 157 Colo. 417, 402 P.2d 934 (1965), require reversal of this conviction. There, Kelley was operating a service station. His supplier filled gasoline storage tanks located on the property, and the gas remained the property of the oil company until it was pumped into the customers' cars, at which time it became the customers' property. Kelley was required to pay the company a specific price for each gallon sold, and he retained the difference between that price and the retail price. Criminal charges were filed when he did not pay the oil company for 2 months. The evidence disclosed that Kelley was neither an employee for the collection of funds, nor the agent of the oil company. Rather, Kelley had complete control of the station, operated and advertised it under his own name and could sell gasoline at any price he wished. Because of this evidence, the supreme court overturned Kelley's conviction, concluding that "no money collected by Kelley in the operation of the station became the Company's property until it was actually transferred to the Company by Kelley in payment of his obligation." Thus, the relationship being merely one of creditor-debtor, Kelley's failure to pay could not constitute embezzlement.
In comparison, Hallman was Bankers Union's agent for collection of the premium for which Bankers Union insured the risk. Whatever were the detailed contractual obligations of Hallman regarding how he handled the money before he sent it to Bankers Union, they do not alter the fact that 60% of the premium was not his.
Hallman's failure to remit the money to Bankers Union constituted the crime of theft, where, as here, the jury found by its verdict he had the intent to permanently deprive Bankers Union of its funds.
We have considered Hallman's other contentions of error and find them to be without merit.
The judgment is affirmed.
JUDGE ENOCH and JUDGE KELLY concur.