# State v. Hanna > Oregon Supreme Court · November 16, 1960 · 224 Or. 588 URL: https://www.frixlaw.com/law-library/cases/9628657 ## Case - **Full name:** State of Oregon v. Hanna - **Court:** Oregon Supreme Court - **Decided:** November 16, 1960 - **Citations:** 224 Or. 588; 356 P.2d 1046; 1960 Ore. LEXIS 657 - **Precedential status:** Published - **Opinion:** Dissent by Perry - **Judges:** McAllister, Perry, Sloan, O'Connell, Millard - **Cited by:** 9 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9628657 ## Opinion text PERRY, J., dissenting. I am unable to agree with the majority’s interpretation of ORS 165.010. In my opinion, the criminal intent involved in ORS 165.010 is an entirely different intent from that element of the crime denounced in ORS 165.005. If we construe the intent in each as an intent to defraud, we do violence to the language of the statute, and usurp the legislative prerogatives. ORS 165.005 has always been held to require an intent to defraud. State v. Johnston, 143 Or 395, 399, 402 , 22 P2d 879 ; State v. Coleman, 119 Or 430, 435 , 249 P 1049 ; State v. Browning, 47 Or 470 , 82 P 955 ; State v. Marco, 32 Or 175 , 50 P 799 . This because the legislature provided therein as explanatory of the word “embezzlement” the words “fraudulently converts to his own use.” The pertinent parts of ORS 165.005 read as follows: “Any officer, agent, clerk, employe or servant of any person, partnership, association or any guardian, conservator, administrator or executor of any estate, any assignee for the benefit of creditors, or trustee or any other person acting as fiduciary who embezzles or fraudulently converts to his own use, or takes or secretes with intent to embezzle *601 or fraudulently convert to Ms own use, any money, property or thing belonging wholly or in part to such person, partnersMp, association, estate, creditors or debtor, * * (Italics supplied) In OBS 165.010, wMch sets forth the crime for wMch the defendant was charged and convicted, the legislature, instead of using the explanatory words for the embezzlement, “fraudulently converts to his own use,” provided “wrongfully converts to his own use.” The pertinent parts of OBS 165.010 read as follows: “Any bailee, with or without hire, including every mortgagor of personal property having possession of property mortgaged, or any purchaser or lessee of personal property obtaining the possession thereof under a written or printed contract of conditional sale providing that title thereto shall not vest in the purchaser until the unpaid balance of the purchase price is wholly paid for, and before it is wholly paid for, who embezzles or wrongfully converts to his own use, or secretes or conceals with intent to convert to his own use, or injures, destroys, sells, gives away or removes from the county where situated when obtained, without the written consent of the bailor or vendor, * * (Italics supplied) The words “fraudulent” and “wrongful” are not generally understood as synonymous or eqmvalent terms. Webster’s New International Dictionary, 2nd ed., defines “fraudulent” and “wrongful” as follows: “Fraudulent. 1. Using fraud; tricky; deceitful. 2. Characterized by, founded on, or proceeding from, fraud; of the nature of fraud. 3. Obtained or performed by artifice. Syn. G-uileful, crafty, wily, cunning, deceiving, cheating, deceptive, insidious, treacherous, designing.” “Wrongful. 1. Full of wrong; injurious; unjust; unfair; as, wrongful acts or dealings. 2. Not rightful, esp. in law; unlawful; illegitimate; without legal sanction; * * *” *602 See also Black’s Law Dictionary. For an interesting discussion of the use of the word “wrongfully” as used in statutes see Traxler v. State, 96 Okla Cr 231, 251 P2d 815 . The words descriptive of the crime in each of the statutes is different. The crime described in OES 165.010 is not merely a conversion, but one that is wrongful. It implies an evil intent or the act of an evil mind not necessarily to defraud, although that may be the result, but to do an act prohibited by the 'statute itself. Conversion is effected by any exercise of a right of ownership inconsistent with the true owner’s rights and the nature and purpose of the trust. 29 CJS 683, Embezzlement § 11. The particular wrongful acts which constitute a conversion, and thus a violation of the trust, are specifically set out in the statute itself. Thus It appears, the criminal intent is the intent to violate the statute and to use the property as one’s own without color of right or lawful excuse. This distinction between a wrongful intent and a fraudulent intent is pointed out in Patterson v. United States, 39 Appeal Cases Dist of Columbia 84. See also Masters v. United States, 42 Appeal Cases Dist of Columbia 350, 39 Ann Cas 1916 A 1243. This distinction was fully recognized in the case of State v. Chapin, 74 Or 346 , 144 P 1187 , which the majority overrule. The majority correctly state that the cases cited therein (State v. Ross, 55 Or 450 , 104 P 596 , 106 P 1022 , 42 LRA NS 601, and Purcelly v. State, 29 Tex App 1, 13 SW 993 ) have reference to the conversion of public funds, but when considered in context with the thought to be conveyed they are quite applicable. They were .cited to show, where criminal intent to defraud is not a necessary element of the crime charged (embezzlement), the “violation of the *603 terms of this statute constitutes the offense, and no other intent need be shown.” State v. Ross, supra, 55 Or 450, 473 . In other words, the intent is the wrongful intent to do an act prohibited by the statute, whether the offending party benefits thereby or not. This court has been very careful to maintain the distinction engrafted into the two statutes by legislative declaration. This is shown by the cases of State v. Cahill, 208 Or 538, 560 , 293 P2d 169 , 298 P2d 214 , 352 US 895 , 77 SC 132, 1 LE2d 87, State v. Stiles, 81 Or 497 , 160 P 126 , and State v. Chapin, supra. These cases are concerned with embezzlements by bailors under the specific bailment relationship set forth in OES 165.015. The statute under which Chapin was convicted was the same in contest as ORS 165.015. (See 1 LOL 883, §1956). State v. Johnston, supra, State v. Coleman, supra, State v. Browning, supra, and State v. Marco, supra, all deal with an embezzlement by officers, agents, and employees who were indicted and convicted under statutes then in force (see 1 LOL 882, § 1955) which are identical with ORS 165.005 and required an intent to defraud. Certainly this court cannot impute to the legislators the fact that they did not understand the distinction to be drawn between the use of the words “fraudulently converts” in one statute, dealing with an embezzlement, and the words “wrongfully converts” in another statute, dealing with a similarly named crime, but relating to a different relationship of the parties. This is especially true when it must be presumed the legislature knew of the interpretation placed upon each of the statutes by this court and, with this knowledge, never revised the wording of either. To abandon the distinction engrafted into these *604 statutes by legislative enactment, and followed by the prior decisions of this court, and to substitute our own beliefs as to what the law should be in such fashion, is, in my opinion, very wrong. I therefore dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9628657. Public record. Not legal advice.