RO 86 IV 12, JT IV 74 (1960)

 From August 1, 1957 to August 25, 1958, Cretenoud had been employed by Schmidt-Agence S. A., of Geneva, as the manager of a small store on Nestlé Avenue in Montreux.  His job was to sell merchandise provided by his employer (newspapers, tobacco, chocolates) and to give the profits to said employer.  His salary was about 650 Fr. per month.

 From the start, Cretenoud proved negligent and lazy in fulfilling the duties assigned him by his employer.  He did not open at the set time in the mornings, frequently taking coffee or simply sporting.  He left the store sometimes in the hands of children, accounted negligently and returned unsold newspapers to his employer too late for reimbursement.  The situation deteriorated rapidly and, by the month of February, 1958, Cretenoud was no longer keeping accounts.  He was unable to account for 7,826.50 Fr. on August 25, the day when he left his position.

 On Sept. 2, 1959, the Correctional Police Tribunal of Vevey convicted Cretenoud for Unfaithful Management and sentenced him to six months imprisonment.

 Cretenoud is here bringing appeal from that judgment. . . . The appeal is rejected.

 Summary of Reasoning:  5.  . . . Negligence of duty is not sufficient to constitute unfaithful management under Art. 159 C.P.S.  the offender must have caused damage intentionally.

 The cantonal judgment did not find intention on the part of the appellant, but it did find indirect intention [dolus eventualis], as it stated that Cretenoud had been aware of the damaging consequences that his failure to perform his duties would have on the fortunes of his employer. . . . Unfaithful management consists in infidelity to the interests of the employer by whom you are engaged.  The offender must have acted knowingly and willingly against the pecuniary interests of the one who confided in him; he must be guilty of disloyalty, in some sort of betrayal of his employer’s interests. . . . It is difficult to see that such conditions can be present in a case of simple indirect intention, even when he commits the act conscious of the duties he has assumed.  The manager who, by negligent management causes damage without really wanting it, is not guilty of unfaithfulness in the strict sense of the term even when he envisages the possible consequences of his attitude.  This is why in the German position on this matter, several authorities feel that indirect intention is not sufficient to constitute unfaithful management.

 Nevertheless, the most widely held opinion is that indirect intention is sufficient. . . . Actually, practical considerations win out over the more theoretical difficulties raised with respect to unfaithful management.  In the case of direct intention [dolus directus], the movement of the offender himself is not necessary to cause damage.  It follows that the criminal willfulness is not too different from that which exists when the same damage is created by indirect intention.  The difference is very little to distinguish punishing the first case and not the second.  It is even less justified in that it occurs more frequently than direct intention and creates a more considerable need for penal protection.

 6.  Indirect intention must, however, be clearly and narrowly interpreted to avoid its being confused with recklessness.  . . . The German doctrine and jurisprudence is quite insistent on this point (sect. 266 German Penal Code [old]). . . . One tends to find indirect intention, as is generally done, as soon as an offender has accommodated himself to the possible result of his act.  One who acts with recklessness also realizes that the objective elements of the offense may be produced and accommodates himself to such a result in the case where he in fact produces it.

 As this Court has held in the case of Elsasser on May 21, 1943 (RO 69 IV 79; JT 1943 IV 76ff), the offender must not only have taken seriously the possibility of producing a certain result, but in addition must have consented to its happening.  It is this last point which catches the decisive difference from recklessness, where the offender, far from consenting to the eventual result of his acts, on the contrary refuses to believe that it, in fact, will come about.  This refusal or consent of the offender raises a question of fact; according to the case cited above, one is not able to find indirect intention from the proof that the actor knew that a certain harm might be produced.  One cannot rely on this awareness in order to find indirect intention; this creates a uniquely subjective element of the offense.  It must, at least, be required that the probability of the result occurring be so clear that the offender’s state of mind would not reasonably be able to be interpreted other than as having consented.

 According to the judgment in the lower court, the appellant had the awareness that he was causing damage to the interests of his employer by his failure to fulfill his duties.  The court went as far as to find direct intention.  But the Court of Cassation of Vaud did not go so far.  It did, however, verify the first judge’s finding that Cretenoud had knowingly and deliberately violated his duties without being mistaken as to the consequences which such a violation would have for his employer.  He had further admitted that he had been made aware of these consequences, but had not so much as modified his attitude and had consciously accepted the result.  Upon evidence of the highest probative value, we can here find indirect intention even according to a strict definition.  As is apparent from the court of first instance, Cretenoud had been made aware of the consequences of his failings by his friend, “A”, herself a manager of a kiosk in Montreux.  She had repeatedly warned him, beginning soon after he started work, but he responded by laughing at her.  Thus the damageable results of the neglect of his duties . . . had been quite early brought to his intention by his friend; he had, through deliberate design, neglected these warnings in such a way as to manifest his consent to the harm which resulted.  His extreme blitheness was demonstrated by his persistence in his attitude after a subordinate . . . had stopped work due to his negligence.  The elements, as much subjective as objective, in unfaithful management under Art. 159 C.P.S. are therefore fulfilled in this case.

 Cour de Cassation - MM. Fassler, Muheim, Bachtler, Perrin and Grisel.