¶1dissenting:
¶2I am unable to agree with the result reached by the majority opinion and feel that the judgment of conviction should be affirmed on the record now before us. To put it simply, the opinion finds an absence of felonious intent by looking at what the defendant did not do, and fails to consider what he actually did do.
¶3By the terms of the trust agreement the defendant was bound and charged with the knowledge that funds deposited for the first dividend could be used for the payment of the first dividend and for no other purpose. When he declared the second and third dividends it must be presumed that he had sufficient of the assets liquidated to pay them, and his notices to certificate holders were tantamount to an admission that he had deposited such funds for the certificate holders, which, under the trust agreement, then became their property. It is inconceivable that a shortage of over $76,000 could be a mere error in accounts or the result of some other clerical error of which the defendant was not aware. That the dividend account was short this amount was a secret well kept by defendant from the certificate holders who were the beneficiaries of the trust, as were the numerous overdrafts defendant paid from unknown sources, and forestalled knowledge of the true condition of his trust. His action of commingling the dividend funds kept knowledge from the first dividend owners that their funds were being used to pay second and third dividend owners. While the majority opinion states there was no concealment or secrecy, the complex system of handling and banking the trust assets could well conceal many secrets from the certificate holders whose money was embezzled, and who would have little opportunity, if any at all, to scrutinize or control defendant’s administration of the trust. Because of the nature of the relationship I feel that but little, if any, weight should be given such a defense.
¶4There is sufficient precedent to say that by supplying the deficit in the second and third dividend funds from funds belonging to first dividend owners, defendant effected a wrongful conversion to his own use, and not to the use of the certificate holders, as he contends. The situation here is analogous to the one under consideration in Spalding v. People, 172 Ill. 40. In that case Spalding, as treasurer of the University of Illinois, had control of three funds: (1) the general university fund for current expenses; (2) an uninvested endowment fund; and (3) an invested endowment fund. He took bonds with a par value of $28,000 from the invested endowment fund and pledged them with a Chicago bank to secure his personal note for $25,000, which amount he deposited in the Globe Savings Bank, of which he was president. At the time of his trial the note was unpaid, the Chicago Bank had the bonds and refused to deliver them to Spalding’s successor. Spalding was indicted for embezzling the bonds. It was admitted that he had knowingly and intentionally pledged the bonds to secure payment of the $25,000 which he borrowed as an individual, but he sought to defend that there was no criminal intent or no fraudulent conversion of the bonds, because as treasurer of the university he had paid out the $25,000 so borrowed, for the expenses of the university on its warrants regularly drawn upon him for that' purpose. Without detailing the relationship, it is sufficient to say that Spalding claimed to be a creditor of the university for the amount in the general fund, that he might lawfully use it for his own purpose, and that, there then being a deficit in the general fund, the supplying of the funds to pay the deficit by pledging the bonds from the endowment fund was not a conversion to his own use but to the use of the university. His proofs in this respect were not allowed in evidence, and the court, commenting on such defense, stated, at page 58: “The warrants were drawn on him for expenses, and plaintiff in error was charged with the knowledge that they were not drawn upon or payable out of the invested endowment fund; that that fund could not lawfully be applied to their payment, …. If a deficit had been created in the expense fund by ‘ his use of "it under the supposition that by the alleged agreement to pay interest he could use it for himself, by supplying this deficit he did nothing more than he was bound to do, and the application of the $25,000 thereto was the application to his own use, and not to the use of the university.” Also similar to the present- case is that of People v. Donohue, 369 Ill. 558, wherein Donohue’s use of a check received in the normal course of business to cover up a prior shortage in his accounts, was held to be a conversion to his own use and constituted the crime of embezzlement.
¶5The evidence thus having shown that the defendant converted first dividend funds to his own use, a guilty-intent is necessarily inferred from the voluntary commission of such an act, the inevitable effect of which was to deprive the true owners of their property. (People v. Nevin, 343 Ill. 597; Spalding v. People, 172 Ill. 40; Commonwealth v. Tenney, 97 Mass. 50.) I see nothing in the grounds relied upon by the majority opinion to defeat such an inference of felonious intent, and no similarity in the facts of this case to those of People v. Parker, 355 Ill. 258, and People v. Ervin, 342 Ill. 421, upon which the opinion is largely based.
¶6It would unduly prolong this dissent to further elaborate my views on the inadequacies of factual data which the majority opinion finds helpful to its result. For the basic reason that the felonious intent may be inferred from defendant’s act, I believe the judgment of conviction should be affirmed.