An indictment was returned in Lincoln county wherein Elmer C. Baker, defendant, was charged with embezzling, and converting to his own use, $9,853.80, the property of Lincoln county, while he was the duly appointed, qualified and acting deputy county treasurer. The jury returned a verdict of guilty and fixed the amount of the embezzlement at $4,000. Thereupon defendant was sentenced to serve a term in the penitentiary of not less than three nor more than ten years and in addition thereto a fine was assessed against him in the sum of $8,000 under a statute which requires that, where a jury finds a defendant guilty of embezzling public money, in addition to the sentence, he shall be fined by the court in double the sum of the embezzlement ■as found by the jury. Comp. St. 1922, sec. 9634. Defendant, alleging error, has brought the "record here to have it reviewed.
H. E. Crandall is a county treasurer examiner. Sometime in April, 1923, he went to North Platte to check the county treasurer’s office. From his evidence it appears that Mr. Souder, the county treasurer, was not in the office when he first called, and that the defendant, “ Mr. Baker, was then in charge,” and that he immediately began hi's examination, but did not see Mr. Souder until “ just before closing time that day.” He found three certificates of deposit issued by the “ Bank of Lincoln County at Hershey,” in the sum of $5,000 each, which “ ran to S. M. Souder, treasurer,” and he “ accepted them as part of the cash.” It was,subsequently disclosed, however, that the county treasurer had no authority to negotiate for the certificates of deposit in question.
Mr. Larsen is an accountant. With his assistants he made an investigation of the condition of the county treasurer’s office. He arrived at North Platte to begin work sometime in the last week of April and began his investigation the first week in May, 1923. On the evening of his arrival, or in the nighttime, a fire was discovered in the courthouse by which it was so greatly damaged that it could no longer
All of the data above referred to, which included more than 30 of defendant’s salary checks, in sums ranging from $83 to $150 each, with his signature indorsed thereon, and which were cashed by him, and over 400 exhibits, called “ I O U ” slips, and marked “ I O U Receipts of E. C. Baker,” with his signature thereon, and also certain verifying slips of adding machine tape, are in evidence. The “I O U” receipts designated sums of money, varying from $3 to $100 each, and this money the state contends was taken, from time to time, from the money drawer by defendant. Some of the checks and "10 D” receipt exhibits, in evidence, were blackened and charred to some extent by-the fire and some were apparently so thoroughly soaked with oil that it became necessary to run them through a wringer to extract the oil. These checks and “ I O U ” exhibits for the most part were found in the so-called “ oil spot ” upstairs in the district courtroom. A few exhibits more damaged than the rest, it was found necessary, for the purpose of the trial, to preserve in envelopes which are attached to the record. But, for the most part, the exhibits are plainly decipherable. Defendant’s salary checks bore the name of S. M. Souder over the printed designation “ County Treas
In his own behalf defendant testified that his employment in the county treasurer’s office began in the early part of 1919 and continued while Mr. Souder was county treasurer ; that at first his salary was $1,000 a year and later was raised to $105 a month, and subsequently, and for a greater part of the time, it was $150 a month; that for about three years of his employment he knew the combination of the safe in the treasurer’s office; that it was with Mr. Souder's consent that he secured advancements on his salary by taking cash from the money drawer and placing an “ I O U ” slip therein showing the amount so taken; that such “I O U ” slips were carried in the drawer as cash until the end of the month, when the remainder of his salary was taken from the drawer, in cash, and the “I O U ” slips were thrown into the back part of the drawer in a separate compartment, and that, as at times happened, “ when he made money outside, he would sometimes put the cash in the drawer and take up the slips and throw the slips in the back part of the drawer.” Mr. Baker denied that he ever at any time removed any of the “IOU” slips which represented the advancements taken from the cash drawer without replacing the cash item and that he did not know “ what finally became of those accumulating receipts and slips and matters of that kind.”
The contention of the state is that, after deducting defendant’s salary for the period of his employment from the amount of money that came into his possession during the same period, the remaining amount, as shown by the state’s
Counsel contend that the conviction of defendant cannot stand in any event because, as argued, he was not a deputy county treasurer de jure, or de facto, until January 3, 1923, when he filed a bond and took an oath, and that not until then did he become a deputy county treasurer. Counsel also contend that, even if defendant was a regularly appointed and qualified deputy county treasurer, during all of the period involved in this action, or if he was a de jure. or de facto deputy county treasurer during this period, he did not come within the language or the meaning of section 9634, Comp. St. 1922, under which the indictment was drawn, in that he was not, as argued in the brief, “ a public officer or other person charged by law with the collection, receipt, safe keeping, transfer or disbursement of public moneys.” Section 9634, so far as applicable here, reads:
“ If any officer or other person charged with the collection, receipt, safe-keeping, transfer or disbursement of the public money or any part thereof, belonging to the state or
In the use of the word deputy it will be presumed that the legislature used it in its ordinary and legal sense. 1 Bouvier’s Dictionary; Webster’s New International Dictionary.
Sections 5064, 5065, and 5070, are a part of article XVIII, ch. 53, Comp. St. 1922. This chapter refers generally to both state and county officers. Section 5064 provides, among other things, that each county treasurer may appoint a deputy, for whose acts he shall be responsible, and from whom he shall require a bond. Section 5065 provides that, “ in the absence or disability of the principal, the deputy shall perform the duties of his principal pertaining to his own office.” Section 5070 provides that “each deputy shall take the same oath as his principal.” This section makes no distinction as between state and county officers. Section 5039, Comp. St. 1922, among other provisions, contains this: “ All official bonds of county * * * officers must be * * * made payable to the county.”
It is clear that defendant, at all times material to this action, held himself out to the public as deputy county treasurer and performed the duties of the office in the absence of his principal. From his brief it appears that he was the only employee in the office who had “ the combination of the money safe ” and that he was the “ only one who could write checks.” Defendant admitted the official
To support his argument in respect of nonliability, defendant cites Moore v. State, 53 Neb. 831. This case is not in point. It appears that Moore was the auditor of public accounts, and, as such state officer, he was charged with the embezzlement of certain public moneys which, by some means, came into his hands. In an exhaustive opinion by Judge Irvine, in which a judgment of conviction was reversed, the writer at page 848 concludes with this observation : “ To hold that the auditor is a person charged with the collection, receipt, safe-keeping, transfer, or disbursement of the public money, when the law expressly forbids him to receive it or handle it, would certainly go beyond the plain import of the words of the statute, and create a crime by construction in the plainest violation of the law.” It is obvious that the Moore case does not support defendant’s argument.
Defendant also cites State v. Meyers, 56 Ohio St. 340. In this case Meyers, a deputy county treasurer, was charged with embezzling $100 of public money belonging to the city of Canton which came into his possession, as alleged, by virtue of his office and in the discharge of his duties. In respect of the statute under which the prosecution was
“ The law goes no further than to authorize the county treasurer, at his pleasure, to appoint one or more deputies, who hold their appointment only during the pleasure of the principal, who is answerable for the proceedings and misconduct of the deputy, and may, for his own protection, take a bond with sureties for the faithful performance of the services required of the deputy; but the latter takes no oath of office, nor gives bond to any public authority, and is in no sense a public officer, but a mere agent of the treasurer.”
In view of the wording of the Ohio statute, and of the meaning placed thereon by the supreme court of that state, it clearly appears that the Meyers case is not in point.
In Iowa the statute which provides for the punishment' of public officers for the embezzlement of public money is substantially the same as the Nebraska statute. There is, however, a distinction between the Iowa statute and our statute in that the former contains a provision under which a public officer may be prosecuted, as for embezzlement, for such public money as may come into his hands and is, by such officer, “.unaccounted for.” State v. Brandt, 41 la. 593. In this case Brandt, a deputy state treasurer who was prosecuted for embezzlement, contended that he was not a state officer within the meaning of the act as it then existed, and was therefore not indictable thereunder. But the court expressly held that a deputy state treasurer was a state officer and that the law embraces an officer de facto as well as one de jure. Brandt’s conviction however, was reversed, but on another ground, namely, that the indictment against him did not charge that the public money that came into his hands was “ unaccounted for,” and that this averment in the indictment, under the facts, was required under section 4243 of the Revision under which the indictment was drawn.
An accepted authority says this in respect of the status of deputies generally:
In Norton v. Shelby County, 118 U. S. 425, this was said by Mr. Justice Field:
“ Where an office exists under the law, it matters not how the appointment of the incumbent is made, so far as the validity of his acts are concerned. It is enough that he is clothed with the insignia of the office, and exercises its powers and functions.”
“ The doctrine which gives validity to acts of officers de facto, whatever defects there may be in the legality of their appointment or election, is founded upon considerations of policy and necessity, for the protection of the public and individuals whose interests may be affected thereby. Offices are created for the benefit of the public, and private parties are not permitted to inquire into the title of persons clothed with the evidence of such offices and in apparent possession of their powers and functions.”
In view of the statutes and of the authorities, and for the reasons appearing herein, we conclude that defendant, prior to the time when he admits that he took the oath of office and filed the statutory bond, was the de facto deputy county treasurer of Lincoln county, and as such was a county officer, and was therefore subject to prosecution under section 9634, the same as one taking the oath and giving a bond.
True, the burning of the courthouse, which was charged in the newspaper exhibits to have been of incendiary origin, naturally created a great deal of discussion in the county. An organization, composed of persons from all parts of the county, was formed to inquire into the facts pertaining to the alleged incendiarism and also to investigate the alleged unlawful expenditure of a large sum of public money in connection with the erection of a new courthouse, then in the course of construction, and also to investigate the facts in respect of the public business of the county generally, and in respect of alleged embezzlement of public money.
In this connection it may be noted that much evidence, mostly in the form of affidavits, in addition to that of defendant, and also many newspaper clippings, mostly from county papers, are in the record, and in support of defendant’s motion, and these were introduced to show the existence of a general hostility to defendant which was alleged to exist in Lincoln county. But the state filed many counter affidavits which tended to prove the contrary. The contrary also fairly appears from the voir dire examination of the jurors at the trial which occurred long after the events referred to in the exhibits. The record before us, altogether aside from the transcript and the exhibits, consists of more than 2,000 pages. We cannot of course reproduce the evidence on this point in the space that should be allotted to this opinion. But from an examination of the affidavits introduced by defendant, and the counter affidavits introduced by the state, we conclude that, as hereinafter pointed out, this assignment of alleged error is not tenable. It may be observed that the state alleges, and it is not denied by defendant, that only two indictments were returned against him, while approximately 140 indictments were
Defendant also assigns as reversible error the fact that a large part of the counter affidavits which were filed by the state, in resistance of defendant’s motion for a change of venue, were originally verified by the respective affiants before notaries public who were counsel for the state. When the court’s attention was directed to this fact many of the affidavits, so verified, were permitted to be refiled after being reverified before a notary public against whom this statutory inhibition did not exist. Comp. St. 1922, secs. 8633, 8879, 8884; Horkey v. Kendall, 53 Neb 522. It will not be presumed that the court would, or that it did, consider affidavits which were verified by counsel for the state, and particularly where, as in the present case, the counter affidavits which were subsequently verified, before competent authority, were sufficient in substance to overcome those filed by defendant.
Defendant admits that on the voir dire examination the prospective jurors, in substance, stated that if accepted as jurors they could hear the evidence and render a verdict the same as though they had not before heard anything about the case. The argument is that, regardless of the fact, such qualification was practically extorted from the proposed jurors because of adverse public sentiment. Surely it is not to be presumed that the multitude of citizens who were brought before the court and subjected to a searching voir dire examination so stultified themselves! Anyhow, in view of defendant’s admission, a reviewable assignment of alleged error is not presented to us on this feature of the case.
We have examined the instructions given by the court, to which defendant excepts, and also the instructions tendered by defendant, and refused, and upon which several rulings defendant seeks to have the verdict vacated and the judgment reversed. But we do not find that prejudicial error appears in the rulings of the court thereon. We deem it sufficient to say that the instructions, as a whole, which were given by the court of its own motion, when considered together, seem fairly to reflect the law applicable to the facts. It also appears that in the given instructions the substance of such of defendant’s requested instructions, as properly state the law, are sufficiently incorporated.
Defendant contends that the court erred in appointing Mr. William E. Shuman as counsel to assist the county attorney in the prosecution, on the ground that he had taken part in developing certain facts upon which the prosecution is in part based. ' But we are unable to find anything, in the record growing out of such appointment which seems prejudicially to affect the substantial rights of the defendant and which should cause a vacation of the judgment. This appointment was requested by the county attorney, as provided by statute, and was addressed to the sound judicial discretion of the trial court, Comp. St. 1922, sec. 4916. An
Reversible error has not been shown. The judgment is therefore
Affirmed.
Note — Criminal Law, 16 C. J. secs. 306, 308, 322, 2291, 2292; District and Prosecuting Attorneys, 18 C. J. sec. 81; Embezzlement, 20 C. J. sec. 46 — Officers, 29 Cyc. pp. 1392, 1393. •