CO Code § 18-8-407 (2021)
2021 Colorado Code|Title 18 - Criminal Code|Article 8 - Offenses - Governmental Operations|Part 4 - Abuse of Public Office|§ 18-8-407. Embezzlement of Public Property

  Every public servant who lawfully or unlawfully comes into possession of any public moneys or public property of whatever description, being the property of the state or of any political subdivision of the state, and who knowingly converts any of such public moneys or property to his own use or to any use other than the public use authorized by law is guilty of embezzlement of public property. Every person convicted under the provisions of this section shall be forever thereafter ineligible and disqualified from being a member of the general assembly of this state or from holding any office of trust or profit in this state.    Embezzlement of public property is a class 5 felony.     History. Source: L. 71: R&RE, p. 462, § 1. C.R.S. 1963: § 40-8-407 . L. 77: (1) amended, p. 967, § 45, effective July 1. L. 89: (2) amended, p. 840, § 85, effective July 1.    ANNOTATION   Law reviews. For article, “One Year Review of Criminal Law”, see 34 Dicta 98 (1957).   Annotator's note. Since § 18-8-407 is similar to former § 40-5-16 , C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.   Intent of section is to prevent misapplication of public funds. The intention of the general assembly is to prevent the misapplication and use of public funds for the benefit and profit of the officer and to strictly prohibit the use of the money by the officer for speculative purposes and for his own gain. This section is based upon and enacted for the purpose of carrying out the prohibition contained in § 13 of art. X, Colo. Const., and by reference to that, the intention becomes manifest and the limits of legislation defined. Moulton v. McLean, 5 Colo. App. 454, 39 P. 78 (1895); People v. Schneider, 133 Colo. 173 , 292 P.2d 982 (1956); People v. Berry, 2017 COA 65 , 459 P.3d 578, aff'd, 2020 CO 14, 457 P.3d 597.   It is the using of public money for the official's own gain that is intended to be reached by this section. People v. Schneider, 133 Colo. 173 , 292 P.2d 982 (1956).   The purpose of this section is to prevent the intentional misapplication of public funds for private gain by those officers entrusted with the responsibility for the correct disposition of the moneys. People v. Skrbek, 42 Colo. App. 431, 599 P.2d 272 (1979).   “Public moneys” includes federal moneys. Federal moneys deposited into the state treasury are public moneys of the state within the meaning of this section. People v. Skrbek, 42 Colo. App. 431, 599 P.2d 272 (1979).   “Public moneys or public property” means and is limited to money or property owned by the public, i.e., the state or one of its political subdivisions. People v. Berry, 2017 COA 65 , 459 P.3d 578, aff'd, 2020 CO 14, 457 P.3d 597.   Considering the common law origin and purpose of the crime of embezzlement, mere custody or possession of money or property is insufficient to support an embezzlement charge under this section. People v. Berry, 2017 COA 65 , 459 P.3d 578, aff'd, 2020 CO 14, 457 P.3d 597.   It was not the intention of the general assembly to prohibit the depositing of money in banks for convenience in safekeeping. Davis v. Dunlevy, 11 Colo. App. 344, 53 P. 250 (1898).   And bond covering money deposited in bank is valid. A bond given to indemnify the clerk of a county court on account of money deposited in a bank is not void as against public policy, nor in violation of this section. Davis v. Dunlevy, 27 Colo. 244 , 60 P. 570 (1900).   An essential element of the crime of “embezzlement” or “criminal conversion” is that the property must be owned by another and the conversion thereof must be without the consent and against the will of the party to whom the property belongs, coupled with the fraudulent intent to deprive the owner of the property. People v. Fielden, 162 Colo. 574 , 427 P.2d 880 (1967).   Public ownership of funds or property is a necessary element of a charge under this section. People v. Berry, 2017 COA 65 , 459 P.3d 578, aff'd, 2020 CO 14, 457 P.3d 597.   Proof of fraudulent intent not required. In order for public official to commit crime of embezzlement, no need for proof of a fraudulent intent. Only mens rea requirement is that actor knowingly convert the property. People v. Morise, 859 P.2d 247 (Colo. App. 1993).   This section has implicit within its language the requisite unlawful conversion and criminal intent. People v. Fielden, 162 Colo. 574 , 427 P.2d 880 (1967).   Fraudulent intent is not an element of the offense under this section. People v. McKnight, 39 Colo. App. 280, 567 P.2d 811 (1977).   Intent may be inferred. Intent to commit embezzlement of public property, official misconduct, and theft may be inferred from the defendants' conduct and the circumstances of the case. People v. Luttrell, 636 P.2d 712 (Colo. 1981).   It does not require that defendant be the custodian of the money in question or that he have exclusive control over it. Rogers v. People, 104 Colo. 594 , 94 P.2d 453 (1939).   Qualified ownership of funds by state is sufficient to support a charge of embezzlement. People v. Skrbek, 42 Colo. App. 431, 599 P.2d 272 (1979).   Property was not misappropriated as a matter of law where it was used by the defendant as it was intended to be, on special order, with the knowledge of the hospital agent in charge that it was to be delivered to and used by the director himself, not for public use or at public expense. People v. Fielden, 162 Colo. 574 , 427 P.2d 880 (1967).   Required particularity of description of property embezzled. The general rule is that the required particularity of description of property embezzled is the same as in case of property stolen. If, however, the court can determine from the indictment that the property therein mentioned is covered by the statute and the jury can determine that it is the property identified by the evidence, no more is mandatory. People v. Warner, 112 Colo. 565 , 151 P.2d 975 (1944).   Indictment that sets forth multiple factual allegations, only some of which properly constitute a factual predicate for an embezzlement charge, is legally sufficient when it accurately recites the law and provides at least one factual basis to support the charge. People v. Gallegos, 260 P.3d 15 (Colo. App. 2010).   Purpose of indictment met where sheriff was given sufficient notice of the charged offenses and the facts to allow adequate trial preparation and protect himself from subsequent prosecution for the same offense. People v. Gallegos, 260 P.3d 15 (Colo. App. 2010).   Indictment sufficient in prosecution for embezzlement of public property. People v. Donachy, 196 Colo. 289 , 586 P.2d 14 (1978).   Indictment sufficient where sheriff's use of county vehicles and personnel to transport inmates to construct addition to his home satisfied the public moneys or public property element of embezzlement. People v. Gallegos, 260 P.3d 15 (Colo. App. 2010).   Indictment sufficient where sheriff's use of county vehicles and personnel to transport inmates for work cutting firewood involved public moneys or public property because the vehicles were owned by the county and the personnel were county employees. People v. Gallegos, 260 P.3d 15 (Colo. App. 2010).   Indictment insufficient where sheriff's use of manual labor of inmates to construct an addition to his home and cut firewood did not involve public moneys or public property because inmates are not public property. People v. Gallegos, 260 P.3d 15 (Colo. App. 2010).   Although sheriff benefitted from an increase in the value of his home as a result of inmate labor, this increase did not involve coming into possession of public moneys or public property because inmates are not public property, their labor is not public property, and the increased value was to sheriff's private property, not to public property. People v. Gallegos, 260 P.3d 15 (Colo. App. 2010).   Sheriff's profit from the sale of firewood cut by inmates did not involve public moneys or public property because the wood never belonged to the county. People v. Gallegos, 260 P.3d 15 (Colo. App. 2010).   Sheriff's deputy who removed firearms from an evidence locker and converted them for his own use did not violate this section because neither the sheriff's office nor any other public entity owned the firearms. People v. Berry, 2020 CO 14, 457 P.3d 597.   Indictment dismissed for failure to state sufficiently how embezzlement accomplished. People v. Tucker, 631 P.2d 162 (Colo. 1981).   Statute of limitations applicable. The act averred in the indictment must appear to have been committed within the period prescribed by the statute of limitations or an exception must be set forth. If the indictment avers two dates, one of which is so remote as to be barred by the statute of limitations, it is defective. Bustamante v. District Court, 138 Colo. 97 , 329 P.2d 1013 (1958).   County commissioner held guilty of violating section. Rogers v. People, 104 Colo. 594 , 94 P.2d 453 (1939).   Applied in Moulton v. McLean, 5 Colo. App. 454, 39 P. 78 (1895); Bd. of Comm'rs v. Hall, 9 Colo. App. 538, 49 P. 370 (1897); People ex rel. Losavio v. Gentry, 199 Colo. 153 , 606 P.2d 57 (1980).