Facts
The appellant, X., was convicted of abuse of trust, fraud, and attempted impossible fraud by the Correctional Court of the Eastern Vaud district. He was found guilty of using without right 200,000 francs from a loan of 500,000 francs granted by [Y.] to play a rigged card game. The appellant contested the qualification of abuse of trust, arguing that the use of the borrowed money for a game did not constitute an abuse of trust.
The facts of the case are as follows: X. was lured into a rigged card game by R., S., and T. He asked [Y.] to lend him the funds to play, explaining the reasons for his loan. [Y.] granted him a loan of 500,000 francs, which was lost in the game. [Y.] then granted a second loan of 500,000 francs to play a rematch, as well as 500,000 francs as a fiduciary to allow X. to play on behalf of Y.
X. withdrew 200,000 francs from the loan amount and used them for his personal expenses, which was considered an abuse of trust by the Vaud Court of Cassation.
Considerations
The Federal Court examined the question of whether the use of a loan for a game constituted an abuse of trust. It considered that art. 138 ch. 1 al. 2 SCC supposes that the author has used, without right, to his benefit or to the benefit of a third party, the assets that had been entrusted to him.
The Federal Court also examined the judgments ATF 121 IV 23, ATF 119 IV 127, ATF 124 IV 9, and ATF 120 IV 117, which admitted the borrower's duty to constantly conserve the counter-value of what he had received. However, in the present case, the loan had been granted for a game, and not for the…