Facts
The case concerns a dispute between X. and the Public Prosecutor's Office of the canton of St. Gallen. X. had received from [M.] two promissory notes with a Grundpfandverschreibung as security for a loan of 50,000 francs, which was increased to 60,000 francs. X. asked [M.] to hand over the Grundpfandverschreibung of the 4th rank to have it renewed and registered in his name. [M.] handed over the Grundpfandverschreibung to X. on 14 March 1973, but X. did not return it. Instead, X. handed over the Grundpfandverschreibung to [S.] as security for various loans totaling 20,000 francs. When [S.] purchased the property encumbered with the Grundpfandverschreibung, he had the Grundpfandverschreibung deleted.
The District Court of St. Gallen convicted X. of breach of trust and other offenses, and sentenced him to a prison term of 12 months with probation. The Cantonal Court of St. Gallen upheld the judgment, but reduced the probation period to 3 years.
Considerations
The Federal Court examined the question of whether the Grundpfandverschreibung could be considered as a « thing entrusted » within the meaning of art. 140 ch. 1 al. 2 SCC. The Court considered that only tangible and fungible assets can be considered as « things entrusted », excluding real estate mortgage deeds, which are not securities.
The Court also examined the notion of « thing » in the context of the Swiss Criminal Code. It considered that the Criminal Code does not define the notion of « thing », but that according to doctrine and case law, only tangible objects are considered as « things », excluding claims, unless they are incorporated into a debt instrument.
The Court concluded that the Grundpfandverschreibung in question did not…