A statute has an ex post facto effect when it alters the situation of an accused to his disadvantage by: (a) making criminal an action innocent when done; (b) making more serious an act already criminal when done; (c) inflicting greater punishment than that attending the act at the time it was committed; or (d) permitting a person to be convicted with less evidence than was required when the act was done. The doctrine does not apply to trivial matters but to some vested and substantial right possessed at the time of the offense.
A man was indicted for four counts of grand theft and one count of forgery in connection with his alleged misappropriation of the funds of an unincorporated investment club over which he had assumed practically unlimited control. It was alleged that he was taking funds of his partnership for his own use. He moved to quash the indictment on the grounds that as a partner he could not be guilty of embezzling partnership property and that a two-year delay between the alleged commission of the offense and the prosecution therefor denied him a speedy trial. The trial court granted his motion as to the four counts of grand theft and denied it as to the forgery charge. The case was appealed to the Court of Appeal of California.
Can a partner embezzle partnership property?
The Court held that Cal. Penal Code § 487 did not require one to take property wholly of another in order for embezzlement to be found. A partner could be found guilty of embezzlement for embezzling funds of his partnership, property which one has an interest in. Furthermore, respondent was not denied right to speedy trial due to delay between commission of offense and filing of indictment. Respondent did not show there was no legitimate reason for delay and did not show he was prejudiced by delay. Ruling that a partner may be guilty of embezzlement was not violation of ex post facto clause, U.S. Const. art. I, § 9, and did not deprive respondent of due process of law.