State of Oregon v. Cahill

538

Argued September 15, 1955, January 25, affirmed affirmed on rehearing June certiorari denied United States Supreme Court November 1956 v.

STATE OF OREGON CAHILL 2d 169 P. 298 P. 2d 214 Harry Hoy, argued G. the cause for Oceanlake, appellant. With him the brief B. Richard An- Newport. derson, Special Deputy T. Attor- Hollen,

William District ney, argued respondent. Newport, for the cause With Attorney him on the Y. Thornton, brief were Robert Oregon, Foster, General Walter W. District Attor- ney, Special Deputy T. Dallas, Adams, and District R. Attorney, Taft.

Before Chief Justice, Warner, and Tooze, Ross- Justices. Brand Lusk, Latourette, and jvian, J. BRAND,

The defendant Otto W. Cahill was indicted grand jury county of Lincoln for the crime of conver- public § of OCLA, sion of funds violation 23-525 (See by Oregon p ch 371, as amended Laws 639. alleges 165.015.) The indictment ORS day “The said W. Cahill on 1st Otto County February, in the said of Lincoln and did then and Oregon, being, State of then and there possession and there have under his control money, a certain sum to-wit, $750.00, sum of sum of then and said there property of the Taft-Nelscott-Delake Water Dis- municipal Oregon, corporation trict, and that fraudulently feloniously then and did there away steal, make with and convert to his own use the said sum of and did then and there at $750.00, wilfully feloniously neglect place said time and pay over the said sum of refuse and deliver required by and did then and there law, $750.00 feloniously place wilfully and fail at said time and and refuse to fully money pay over said sum of then law- by Taft-Nelscott- demanded so to do said contrary to the statutes District, Delake Water against provided, and made and such cases Oregon.” peace dignity of of the State county De- Polk for trial. transferred to The case was by jury, guilty and from the fendant found appeals. ensuing he now sentence secretary, commissioners, one of the Cahill was public District, Taft-Nelscott-Delake Water corporation. that he received a check It admitted is de- on funds, the District which was drawn pursuant a resolution of the Board to him livered de- 1951. Defendant dated June of Commissioners money and claims that he that he converted nies Naylor, of the then treasurer D. it to John returned January 1954. He testified District, the Water composed of in cash $50' returned January Naylor The Water 27, 1954. died on bills. against brought to recover Cahill action District deposition money. in that taken action is His evidence. position that what did with takes the

Cahill unimportant. his defense He rests supports money, and he returned the that he claim Naylor, asserting is silenced who that claim acknowledging receipt the return executed death, purported money. state contends The forgery. Naylor signature ais judge gave example general, a fine trial In impartial a criminal case. intelligent conduct all this we are one error. On commit however, He did, simple. com- The instrument agreed. are facts The “questioned document” was monly as the described Naylor’s appears. name receipt on which for $750 forged signature question is whether in evidence beat- received genuine. document was One

543 ing signature Naylor. the true of was Exhibit 31, This photostatic copy a portion budget report aof of the bearing signatures Naylor District, of both admittedly genuine. It Cahill. Cahill had signed receipt acknowledging a the return himto * * * photostatic copy budget “a report of the * * *” showing signatures of commissioners signed “Otto W. Cahill”.

In addition to Exhibit court 31, the received in objection, evidence, over defendant’s nine checks appeared signature Water District Naylor, of John undisputed D. as treasurer. The testi- mony signatures genuine. was that the were A witness Naylor without contradiction testified that he saw sign them. through checks had all been cleared bank, but there was no evidence that the defendant ‘‘ They had seen them. had not been admitted or treated genuine” by They merely proven as Cahill. were genuine by provide: be others. The statutes handwriting person may “The by of a be shown

anyone who believes it his, to be and who has seen writing him purporting write, has seen to have been charged, his, which he has acted or been acquired knowledge and who has of his handwrit- ing.” OES 42.060. respecting handwriting may “Evidence also given by comparison by be made skilled witness jury, writings those matters, or the with ad- genuine by party against mitted or treated as whom the evidence is offered.” OES 42.070. argued

It is with some force that the nine checks were comparison purposes for admissible under OES 42.060, permissive pro- that OES 42.070 anwas additional * * * * * may given vision, “Evidence also be (Italics ours.)

544 by judges foreclose

Our earlier decisions eminent argument prosecution. consideration this Co., v. Ins. 46 P 850; Munkers Farmers’ 30 Or P Tice, State Or 367. v. signature acknowledged

It follows that a genuine comparison defendant to be admissible questioned signa experts document, with the but ‘‘ proven genuine but admitted tures or treated genuine” purpose. are for such not admissible statutory for Whether this restriction is wise is say. it us to The is valid and violation of was statute legislative enacting purpose error. in statute The receipt signatures fairly is claimed obvious. The of signature genuine comparison for claimed to be with a might an almost endless excursion false, lead to jury first have to into collateral issues. The would genuineness every question resolve contested as signatures comparison for offered before signa safely comparison could use them for with the questioned Signatures conclu ture on the document. sively genuine proven as to be are relevant signatures significant purposes comparison, as for genuine” the defendant. “admitted or treated as comparison of the nine use checks genuine, they and not were not not because error, they probative simply value, were but because without they type of evidence forbidden because were a grounds policy—the avoid- of extrinsic on the statute say In case we ance issues. this would of collateral conclusively genuineness nine checks required by manner stat- established, but not erroneous use of the committed but the ute. Error was experts strongly by the tended inadmissible checks they part on their mistake when the risk of reduce pronounced signature receipt forgery, to he comparing signature. after it with the admitted provides The constitution of this state that either party may exceptions have attached to the bill of “the testimony, whole the instructions of the court to the jury, any other material matter to the decision of appeal.” provides: It then supreme opinion,

“If court shall be of after consideration of all the matters submitted, thus judgment appealed the court from was such in as should been rendered such case, have judgment notwithstanding any shall be affirmed, during error if, committed trial; respect, judgment appealed from should be changed, supreme opinion and the court shall be of judgment that it can determine what should have been entered in the court it shall direct such below, judgment to be entered the same manner and equity with like effect are as decrees now entered in appeal supreme cases on court. Provided, nothing in this section shall be construed to author- supreme ize the court to find the defendant in a guilty criminal ease offense for which greater penalty provided than that of accused was convicted the lower court.” Con- Oregon, stitution of Art VII, Section 3. only question

The serious in this case is whether we should invoke Article and VII, Section 3 affirm the judgment “notwithstanding any error committed dur- ing judgment trial”, should reverse the and remand the case for a trial. new

Attention is first directed to the this fact forgery. defendant was not indicted for He was in- charge feloniously and tried on dicted that he and fraudulently public converted to own use of his $750 possession. question funds The is, which were money? did he convert the forgery prin- of

The issue neither the sole nor cipal in the case. is criminal conversion, one issue The question forgery on to of which, sure, be Though weighty material. there was evidence other question forgery issues, of seems have absorbed of counsel and court. the attention begins June 1951. The narrative with Defendant of the Board of a member Commissioners Cahill was District, Water hereafter of the Taft-Nelscott-Delake secretary. He District. was also its called the Water meeting of the Board on The minutes June by secretary. They signed as Cahill contain 1951 are following recital: Secretary reported had he been “The advised Departments would soon have that available other Federal several by purchase disabled for veterans required by numerous items individuals, requested that be au- District, $750.00 Water thorized deposit purpose, for such up anything required. would tie amount “By amount consent the of $750.00 unanimous personal be transferred authorized purchase Secretary for of ma- account of the equipment inspection event terial District benefit will such items determines purchase.” from such (1) advised several important are items (2) Departments soon available items would be Federal (4) (3) re- purchase veterans; Cahill disabled (5) items quests transferred. These will $750 testimony. was clerk appear J. C. Shields the later meeting. present He testi- at the and was the Board a statement made that Cahill fied being through there would a war veteran him “that quantity purchase ma- him for be available could some material which in which would terial, advantageously be used District, Water at very immediately a able but and it cost, low was not avail- in a short and that in time, would be order purchase necessarily it he would have to have purchase, the funds available when he made the and the Water Board at that time transferred to his personal pur- the sum account for that $750.00 pose.” also Shields testified the check was returned from regular bank in course. payable On June 1951 a check was drawn signed Cahill for on North Bank, Lincoln $750 by the Water District Noble and Cahill. The check is undisputed. in evidence and its tenor is It bears date appears of June on 11,1951, the back indorse- perforation ment “Otto Cahill”. W. The “Paid reads typed copy original deposit slip —6-12-51”. A of an produced by the Lincoln Bank and identified as bookkeeper. original deposit slip such the head The given copy been had to Cahill. The was received with- objection. Subsequently orig- out the microfilm of the deposit produced jury slip per- inal and the mitted to see it the aid of a with “recordak” machine. deposit slip was dated 6-12-51. The name of the depositor appearing thereon was W. Cahill, Otto following: appears one line “TND Water Dis- bookkeeper trict 750.00”. The head testified that Ca- up original deposit slip hill made which was micro- regular filmed in course business that Cahill obviously it. TND refers to Taft-Nelscott-De- wrote lake, the name of the Water District. What does the original disposition say about examination his counsel, check? On direct testified follows: Cahill deposit slip “Q. There evidence here deposit and states on its $750.00,

which shows that it for a made the Taft-Nel- face check you tell seott-Delake Water District. Will whether you deposited money you this that not, or whether from Board? received my “A. best recollection is that I did Well, not.”

Concerning receipt of testi- check, his Cahill fied: it first authorized the clerk when was

“Well, day anything, I a asked me if wanted check up so I I’ll make it can No, said, and said get and we following noon, I our records and the clear, I into the believe, or some time went Water Office laying my made desk, on it was and the check was required my signature and the Treas out to itme, signed over and en I turned it check, urer’s. dorsed it gave it to our former back, on the and McKinney superintendent Lynn Mac, I said, and him to house and have want Earl Noble’s take this down you sign me to do with said, it. He do What envelope,—a I manila Here brown said, and it, safety envelope, fit into a about the size that would get deposit it said, bank, Go down box—I bring envelope put back; it in this cashed envelope positive he did. The that is what and I’m was always has been returned me envelope envelope, I had and on the cash in that ‘Property placed of the Taft-Nelscott-Delake Water my safety put I init Some time later District’. day, deposit if it don’t remember box—I * # in the district office. hadwe safe because safety Again, testified Cahill quote: deposit box. We any purpose during you use it Did

“Q. you it? had time

“A. No.”

54S) quote: Again we you have like to Mr. I would

“Q. Cahill, Now just happened again this on $750.00 describe deposit what you day was— after this check made the deposit “A. I it. did not deposit your show a “Q. bank records Now, same check? Is that this 1951, of June $750.00. “A. I think it is. don’t it?

“Q. Well, what is my deposit had made. wife “A. That’s your happened have her own. $750.00? wife “Q. Oh, ‘ ‘A. several accounts She has you got that she “Q. “A. $750.00? Do know where things quite number of Well, she owns strictly where she her I don’t know that own. are testify got to it. one. can that She Cahill, Mr. coincidental, Isn’t that rather “Q. deposit in the amount same that make she would you day received it? the after check, this appear But I know that so. “A. it would Well, deposited money, got it was I the question. but whether Inot

whether testimony fied the 31st cashed that “Q. “Q. # in check ^[*] the but (A.) Now Mr. or not day # before grand that ^[*] No; deposited it in the Lincoln bank? you # March, 1954, I did the Lincoln I think jury Cahill, advised the under I stated I will deposit county grand jury oath that and I will grand refer that I it.” jury you you had had ask or testi- cashed your you it deposit slip he testified the shown was When Cahill deposit slip. prepared such a never sure he that was concerning question the with this In connection reporter court disposal the check, initial testimony grand jury, took the before read who testimony body, jury that Mr. before Cahill’s Attorney General, Hollen, and Mr. Thornton, the prosecutor, being present. quote: We money ‘Where between

“Question: was period ‘In the of 1951 until now?’ —Answer: City’.—Question: ‘Was Water Office of in gave They ‘It in me cash?’—Answer: cash. thought I I we were check, it, and cashed because very shortly, going cash in put I to have a deal ‘Did safe’.—Question: District the Water you deposit ’—Answer: ever bank? gave them check and—’— first, ‘I I did, when you draw the cash?’— ‘And when did Question: I closed out later, time ‘Well, it some Answer: you my me on behalf sued all bank accounts when notifying county it’.— me about of Lincoln without you cash?’ took out the that when Question: ‘Was time I did that’. some before it was ‘No; —Answer: long you how before?’—An- ‘Do recall Question: I don’t’.” ‘No, swer: her taken at reporter District ‘In the Water

amount in what?’—Answer: ” safe.’ up on cross- came matter same trial the the main At by examination—questions Mr. Hollen. question Mr. you further Do recall the “Q. check you proceeded cash the ‘And

Thornton: safe?’—Do re- you kept currency member that question?

“A. That’s right. that “Q. you And do remember answered: you time it account.’ ‘Well, my for period I “A. In safe box what testified my deposit to.

“Q. you Do recall that answer?

“A. I do not. Not the one No, you read. You made that

“Q. deny you answer?

“A. That’s right.

‘‘ a further after Q. Now, you question, do recall ‘In other words, made cashed you response: you ’— — account ? your personal it and put Mr. Thornton? you question by Do remember “A. I don’t. I don’t think he made it. No, And do recall to that “Q. answering you ques- to begin tion: that’s with.’--” ‘Yes, right, “I did not testified, deposit Cahill Water Again, * * added, check He “there had District been in that account prior to that deposit put $600.00 date.” Cahill, note in that Mrs. who was not passing

We testified, room her husband made the fol- when “I under don’t ever recall a oath, statement lowing ’ ‘‘ ’’ ’ She added that she could swear deposit $750.00. in Mr. bank Cahill’s placed account. to have alleged the man who

Mr. McKinney, and returned it, cashed bank, the check to taken follows: testified as cash, with the Mr. ever Cahill “Q. you requested Were to the North sum any check take Taft and cash it? Bank at Lincoln “A. No sir. you thing?

“Q. Did do such ever No “A. sir. any you thing? Did

“Q. at time ever do such “A. No sir. any you any go Did to “Q. at time ever bank bring

for Mr. him Cahill and back cash? “A. I did. never any you go any Did “Q. at time ever bank for bring envelope?

Mr. back brown Cahill “A. I never did.” testimony intrinsic incon-

The of Cahill contains sistency even reference to the falsehood, without contradictory The of other witnesses. climax evidence all end of the trial. After was reached near the money deposited that the sworn averments was made bank, counsel two announcements Cahill’s court, to the follows: Hoy: please, I “Mr. If Tour Honor think—it very matter, and shorten the it’s not material

will testimony anyhow—I on think I think the deposit—the question not that of whether or $750.00 testimony deposited time, check was in error.” the defendant was again bookkeeper at had bank After the head Hoy said, Mr. “we will admit testified, deposited.” was judicial let us if the admission

Now see anyhow”. deposited very “not material analysis statements turn of the bank now We showing deposits, balances withdrawals Cahill, 26, from December of Otto W. or Goldie account January identi- were 1954. statements 1950 to bookkeeper Lincoln Bank as the head fied gone originals the de- which had identical objection”. They “No positor. received with were We will trace the ebb and of the balance in flow the bank account from the date of the Water District year check down to the end of 1953. After the de- posit joint balance in June account $1,016.64. This balance was reduced with July entry entry immediately until 5, each 1951. The preceding July 5, was still in excess of It $750. July on the statement as is shown On 5 there $836.72. deposit of was a and withdrawal of $268.74 $509.67. following simple computation: We make Balance Add 836.72 268.74 $ July deposit 5,1951 New total 1,105.46 Deduct check 509.67 balance New 595.79 $ day’s at balance the end of the business The new shows $595.79, on the bank statement as which is less $154.21 amount of the trust than the fund. The withdrawal portion of of the trust fund cannot be this attributed copy A of the check for Mrs. Cahill. is $509.67 by payee It the defendant. evidence. was drawn Bank, the Lincoln and Cahill testified: you paid that note off to the Lin- “Q. Now, day July you 1951, on the 5th of did not? coln Bank imagine I about that time.” did, “A. I and there contention, none, can be no is There represented any or the check of the small checks $509.67 except any for defendant’s withdrawal $750 personal and benefit. use July until the account was 1951 and closed 5,

From equaled January, the balance exceeded 1954, during only periods: (1) July two Between 8,1952 July the balance varied 11, 1952, between $836.42 rapidly many $755.16,but that balance was reduced largest small of cheeks, $76, which was until on (2) 1952, the balance was 20, October On $255.98. augmented by 1952 the 21, October balance was a de- posit figure of $2,213.84,and stood at about that for days, on 23 a check two but October for was drawn reducing $2,112.00, the balance October 1952 to copy A of check in evidence. It was $211.38. payable Chevrolet Coast Co. sum and was the defendant. This $2,112.00 drawn with- charged yet cannot be the defendant’s wife, drawal short the account until it was $538.62 it reduced trust fund. amount suggest part sum

No one would this expenditure represented Water District. only drawn one other check between June There was equaled January 13, or ex- 1954 which 1951 and on drawn out That was check $125 ceeded $120. leaving a on that date of balance 1953, December 16, any that these small claimed No one has $104.97. personal use of de- other were for than withdrawals or fendant his wife. and 12, 1951 June various occasions between

On January reduced to nominal the balance 13,1954 January, example, 1952; in $18.68 as for sum, $13.20 January, June, in 1953; $3.09 in June, 1952; $20.16 The account was 1953. December, and 1953; $4.01 January 1954 at on $2.74. closed undisputed that vari establishes at evidence The January July 13,1954, 3,1951 ous times between portions to own the fund his converted an by January if at earlier 13, 1954, and that use, date, lie had pos converted all of the fund, with the exception sible charged The indictment $2.74. defendant converted the fund own use and did charge pay also that he failed and refused to over the require fund. There was no motion to the state to elect whether it would stand on the conversion or on the failure to return the The conversion and the fund. alleged failure return were to have occurred on the day February, first 1954,but the on date which the allegation, conversion occurred was not a material proof conviction could have been had on that the con any years version prior occurred at time within three to the commencement of the action. State v. Wilson, period 127 Or 271 P 742. The of the statute of applicable charged limitations to the crime was three years. provides 131.110. ORS statute The also

‘‘ precise time at which the crime was com- mitted need not be stated in the indictment, but it may before the alleged to have been committed at time finding thereof and within the time in may action be commenced ex- therefor, cept ingredient where the time is a material in crime.” 132.610. OES proper

It follows would have been conviction undisputed showing, (1) evidence above, reviewed deposit piecemeal of the fund and its conversion after July day 3, 1951 the last on which the fund remained (2) proof intact the bank account, that the fund up by was never withdrawn as such but was used personal withdrawals from the account. The conver- three-year period. sion all was within the If the state alleged proved had never a failure to return the Naylor, solely upon could have relied by supra, conversion established the evidence reviewed continuing and the that the fact acts conversion did specified not date in occur the indictment would provided, part: immaterial. The in be statute any person any money, “If shall receive warrant writing directing payment in or instrument * * * money any municipal public or cor * * # poration possession or shall in his have writing any money, warrant or instrument di recting payment belonging to such * * * * * * corporation, or in such way corporation has an and shall in interest, any portion own or shall convert Ms # use thereof ** pay neglect or refuse to over deliver any portion by law and re thereof, directed * ** person guilty quired of deemed such shall be * * larceny § *.” OCLA, 23-525, as amended by Oregon Chapter Laws, 1941; see, and OES covering provisions, slight the same with 165.015 ours.) (Italics changes. verbal be of evidence later to dis- The in admission error original question as to irrelevant cussed was logical is that conclusion of the fund. conversion proper necessary guilty both the verdict of jury performed will be shown function, its and it if the despite judgment be affirmed should hereafter that the dealing issue of another committed in with an error may argued the conversion It the case. conclusively proven done to have been not fact have overlooked We the defendant Cahill. joint deposited account that the of the checks assume some We and his wife. Cahill by Mrs. for she testi- Cahill, the fund drawn on were puts I take it out.” “He general terms, fied in say alone drew checks that she course, not, of did She undisputed joint shows evidence account on the per- large the defendant drawn checks were sonally. questions immediately

Several arise to the confront defendant. The resolution of June 8, 1951 authorized “personal transfer of to the account of $750 secre- the tary.” Obviously this resolution referred to the ac- count of Cahill on the books of the Water District— personal not to his bank account. But let us assume deposit that resolution “personal the authorized in the account” of Cahill at the bank. Did such resolution deposit joint subject authorize in a by account check party (Mrs. Cahill) a third stranger who was a transaction? think it We will not be denied here that deposits money joint when a man in a account with wife, his he authorizes bank to honor the checks by drawn either himself or his accept wife. Can a man belonging public trust funds deposit and then pay them and authorize the bank to them on out checks by personal family expenses? drawn his wife for or If Mrs. against Cahill drew some of the small checks joint account, it was Mr. because Cahill had author- by depositing money joint ized it account. putting responsibility There is no more excuse for placing wife than his there is for it on the dead Naylor. especially man This true in view of the fact expressly knowledge that Mrs. Cahill denied that put joint ever $750 account. judicial by attorney

In of the view admission his deposited personal joint in account, and of the that conclusive evidence this account by per- was reduced to nominal sum for withdrawals by authority, sonal wife, use made Cahill or his with his we have assumed thus far seemed to us what obvious— namely, money. that converted the Cahill It now seems appropriate, our however, examine conclusion in respect closely. more suggested, though

It has been not defendant, whereby the Water transaction of June 8,1951, to the defendant Board transfer authorized given him on the next and the check which was Cahill, relationship day, resulted the creation Board and its the Water debtor creditor between premise, secretary, the conclusion From Cahill. this be entitled to use that the defendant would is drawn way, and or in other business, in his own the $750 obligation only to cancel his in- would buying pipe the District either debtedness, bought. pipe by returning if the were argued District wanted that the Water further It is n money his so that he treat own to might, veteran, or disabled make individual, as an bargain If that the under- for the District. was better standing Cahill, it not shared District, was for he testified: get pipe required,

“My we intention was probably I had turn that fund that back they for it.” then would issue check district authority “lacked that he also swore Cahill superin- inspected by purchase it had been it until Certainly nor does claimed, never Cahill tendent.” merely loaned him the that the District claim, now story given that the check money. under oath is His money, in and the cashed, District was of the Water envelope. put direct into On bills, form of he testified: examination * * “ * envelope to me and returned was envelope, always money in that in cash placed been has ‘Property envelope I had on the time District’. Some Water Taft-Nelscott-Delake safety deposit my box—I don’t put it in I

later day, a safe because we hade that if it remember my anything if I told wife office. district happened money belonged me, there was that to the Water clearly District down there and it was * * *” tagged, give marked and and to it to them. He also testified as follows: you any purpose during “Q. Did it nse for you

time had it?

“A. No.” safety deposit He said the was out of the box “couple you of times.” He asked, “What would you do with it when took it out?” He “I answered, always think it was in the Water Office safe.” foregoing sufficiently appears From the repeatedly attempted jury Cahill to convince the he had handled the fund in accordance with the strict requirements fiduciary dealing of a with trust funds. Had he been successful he would have avoided the necessity justifying use of the fund as his own. attempt ultimately His failed because he concluded deposited he must admit that the joint undisputed bank account from which the evi dence shows it was withdrawn himself and his wife personal point At use. this a distinction must be noted three between criminal of this state statutes defining types three of embezzlement. The first by agent embezzlement servant. officer, OCLA, (OES 165.005.) § 23-523 The second embezzlement is (OES 165.010), §23-524 OCLA, bailee. and the public § is funds. OCLA, third embezzlement of 23-525 (OES given 165.015.) Each of the three is name any larceny, though of act of none them define known larceny common law. None involve the common- as at trespass possession of of another. element to law designated “larceny” merely indi are These crimes equal is to and that the crime of embezzlement cate 560 larceny. punished Reinhart, v. 26 Or

shall he State (construing 23-523.) § OCLA, 38 P 822 de 466, properly under all three statutes are collected in cisions heading Oregon Digest under “Embezzlement”. mentioned, the first section intent to defraud Under necessary. Hattrem, 140 Or P2d 371, 13 618; is v. State al., 278 P v. 552, 936; v. et 130 Or State State Cooke 110. 450, 238 P2d Even when felonious Monk, 193 Or necessary of the it is intent element crime held is unlawfully person if a and with such intent uses guilty another for his he is of own benefit though he had to return the embezzlement, intended supra. et al., v. Em the owner. State Cooke (OES 165.005) § 23-523 must under OCLA, bezzlement distinguished bailee, from embezzlement by converting public im funds, this embezzlement particular. portant the last mentioned statutes, Under crime. is an element State intent defraud Chapin, 160 v. 74 Or 126; P State Stiles, 497, v. 81 Or by bailee); (larceny Ross, v. 144 P State 346, 1187 P 1022. decision 596, 104 P 106 The Eoss 55 Or 450, pending respects. It in other on the case bears public a conversion funds there held that accomplished by fully exercise of dominion “is authority of the owner, without the over a chattel deprived enjoy- whereby true is owner wholly it is immaterial chattel. And ment of his converting person his own did it for so whether the * * *” advantage personal at 470. 55 Or or not. only jurisdictions, the intent As held in other public charge proven of conversion must be larceny by to do the intent bailee, or of funds App 201 211 Lentz, 256, Mo prohibited Mansur v. act. App NE 280; 181 State, 42 Ohio Tidd v. 97; SW v. 360; State People Mich NW Warren, v. 561 Sheegog, P v. 993; State, 47 Okla Cr Landrum supra, State, 60 Okla Cr 63 P2d 994. In v. Tidd prohibiting the court said a statute the conversion of public of funds: “* * * interpreted The courts have the fore-

going provisions to intend in their that it effect is public a criminal conversion for an of funds officer expenditure i,s who intrusted the control and with any purpose of such funds to use them for other * * *” provided by than one law. public of While crime conversion of funds respects in most resembles the crime of embezzlement agent analogy fails in officer, servant, the when question. might gives A tent is in It conceded that if be goods purchase A, to B for if with which to good mingles money his B, own, faith with A’s mingling B an there embezzler, mere not would make being though he later used no if intent, fraudulent money might fraudulent he own, intent, with guilty. inapplicable supposed be illustration is purpose plain statute case at bar. The pro under was tried and convicted is to Cahill any public against any public funds for tect the use of only public purposes. applies any It but public corporation, money in owned but to person receiving an If the such which it has interest. guilty he interest, even loans it without is buy larceny. pipe If we assume that Cahill was to pay he for it with his own check as once intimated imply that would not he could in done, he had payment public use the meantime funds obligations. private read: From the Restatement Trusts we “Agent may person may A also be trustee. agent time both an trustee for the same at person. agent same If entrusted with the is property principal, title to for his a trustee property.” the Trusts,

of that Restatement of Law, §8. p § 1 Trusts, 65; same effect see Scott on

To the Minneapolis Fire Bank & Marine Ins. Co. v. see, Minn 257 510. The same Dawson, 193 NW of authority the rule: universal states fiduciary a relation trustee “There between is fiduciary beneficiary (see 170); § there is not a Re- and creditor as such.”

relation between debtor § Trusts, 12. Law, of the statement fiduciary seriously argued no it that there was Can be relationship Cahill Water District and between the secretary when both a commissioner its who was public Again the funds? it is said: received person money pays “If it de- another, one to parties pends of the manifested intention the a If intention a or is created. the trust debt whether sepa- money kept a shall used or as is the payor a third the or fund for benefit rate person, If intention is that a is created. trust money receiving person the un- shall have pay being to a liable similar thereof, use restricted interest to with or without amount whether ’’ person, Re- payor a is created. or a third debt to 12g. § Law, Trusts, statement in- Board Commissioners it be said Can money per- pay permit use the to to to Cahill tended buy they merely that he intended because debts, sonal highly It doubtful pipe it? is even the District with lawfully they public over turn funds could whether lending say nothing to a it borrower. trustee, § 12g, Illustra- Law, Trusts, 1 Restatement See p10, tion 44.

563 From 1 Scott on Trusts, we quote:

“It often happens to a transac- parties tion do not make it clear their perfectly whether intention is the transaction to create a or a debt trust. The test is whether intended they should person have the bene- receiving money ficial well as the interest it. If he legal intended to have the beneficial and legal interests, if he was intended to have the use of money as his own and to be under a merely personal liability pay or to pay-or third person, a debt is created. If, the other hand, was intended that the beneficial interest should remain payor should * * *” to a third created. pass person, trust Trusts, Scott on 86. See Scott 12.2, p also, § on Trusts, 12.7, 98. p §

In State v. Florian, 355 Mo 200 1169, SW2d 64, the defendant charged was with embezzlement and his conviction affirmed. Defendant checks procured from for the Sheehy of to purpose using proceeds buy property Sheehy. for On defendant con- appeal tended that if there was conversion it was a con- version of the cheeks, not of the derived from cashing them, “because he had no right cash checks they loan”, unless constituted and that between Sheehy defendant and relationship of debtor and creditor so that there could no em- bezzlement. The court said:

“* * * The is false. The evidence premise that he shows the cheeks from procured Sheehy for of using purpose proceeds buy him for constituted property Sheehy. agent This to cash the checks and use authority with the pro- Therefore, ceeds for purpose specified. of money, shows embezzlement checks.

proof Mo. 279 v. 510, 411; State v. 312 S.W. State Ross, 1080; 332 57 S.W.2d State v. Wat- Miller, 307, Mo. 564 McCawley, Mo.

kins, 901, 184; 87 S.W.2d State v. 337 Mo.Sup., ap There is 180 S.W. 869. no merit in pellant’s contention the relation of debtor and proof appellant The creditor was created. is that got proceeds nse the not for the checks to his own pay company real estate benefit, bnt ** *” Sheehv. point. directly reasoning The case is would convincing if more defendant had been have been even dealing public at funds, bar. The with case People reasoning applied Hill, v. 2 Cal same People App2d see, Meadows, P2d And v. 141, 37 849. Christman, 625; Brown 126 1, 92 NY NE v. F2d 128; 199 Surety Greenwald, New York v. 223 American Co. of Corp. Dunlop & 681; Minn 25 NW2d Sand Gravel 37, Emery, Hospelhorn, A v. 279, 172 Md 191 Tate 701; v. Browning, 47 470, P2d v. 136; 9 State Or 214, 139 Or Tyler, P2d 49 955; v. Or 82 P Jansen P2d 372. argued supra, the al.,

In v. et State Cooke created, creditor was of debtor and relation The conten- and trustee. than that of trustor rather rejected by this court. tion was defining

Finally the statute turn to we powers District was formed District. That the Water seq. § provisions et In 116-1001, OCLA, under the authority, express implied, no we find that statute to create relation authorize the District would ship itself one between creditor debtor provided expressly contrary, it officers. On the its that “ corporation moneys All shall be de- such of designated posited by paid the be more banks to in one or or be withdrawn commissioners, and shall

the by only previously of vote ordered when out signed by the checks commissioners, by countersigned or chairman, treasurer and the by secretary. inability the act, to in his absence * * *” OCLA 116-1015. knowledge chargeable such

Cahill with was amounting personal arrangement to a loan would corporation. nor can Neither he we ultra the vires liability theory him now immunize from the understanding him delivered to with the was expenses might personal as a debtor that he use for by deposit of Cahill District. We conclude subject joint of account the funds District of a the fund. But the essence conversion of check,was period of fund over a of crime was use guilty event own, time as his in either he was public funds. While felonious intent conversion of the crime, defraud was not element there was ample intent. It to establish such follows evidence guilty undisputed evidence, on the money, even if later think he returned which we attempted Mr. he not do. the re- did Cahill to shift expressed sponsibility dead man whom had complete confidence—a man on whom no there was expressed any person. Barring guilt hint of questioned signature receipt, testi- on the and Cahill’s Naylor mony, is not evidence that there scintilla of money, never it was found received the surely appeared District, as would have officers jury Naylor got not steal it. The if the cash and did signature Naylor found that could have signatures forgery used if no had been even other comparing. deposited judicial admission that damning account has a effect on defendant’s his bank falsely. that he It establishes testified entire case. “positive” McKinney His statement that he was cashed the check and returned the cash in an $750 envelope necessarily false. If it true, is were the bank deposit statement would show both the and the with- drawal of on June 1951. But the statement $750 deposit shows no withdrawal. The went bank, into but there no scintilla of evidence except it was ever taken out as it was drawn out in on or driblets checks Cahill his wife. Cahill offers theory explanation no as to how the fund envelope, bank into in an was translated bills as $50 precluded by him. In truth, testified to he himself offering any explanation by claiming from such envelope McKinney he had the cash in an from the time supposed gotten to have it on June 1951. In undisputed record he can view now claim no more than that he used fund and trust, violated his dug up paid Naylor but somewhere else it to $750 January 21, 1954.

Essentially, the evidence thus far considered is inconsistent with existence cash fund in envelope. an

Having deposit established the and nonwithdrawal proceed we with consideration of cash, the story concerning subsequent dealings Cahill’s with money the Water District. with It testified that Cahill said that when available he have to act at material was would once pay at the funds to and that the time, and have federal, departments would “soon available” have By testimony purchase. kept his own items for years. and one-half for over two The matter the $750 slept meeting apparently until the of December 29, signed by secretary, were Cahill 1953. The minutes later his name was crossed off reason of the but against proceedings Mm. The minutes instituted recall read as follows: * “* * Secretary CaMll] reported [i.e. developemnet [sic] area, in that

on a confidential anticipated and that in order to meet service Special Purchase Fund authorized demand, the Secretary when used at discretion of saving be had been obli- made, substantial could guage Dipped from mili- gated & 4", [sic], for ten new being surplus Wrapped Pipe, pipe said requirements.” (Italics ours.) tary secretary, Cahill, Witness SMelds testified purchase had a “that made made statement he pipe dipped feet of four-inch standard of 3100 steel wrapped, subject inspection super- our and of for that he had sent his certified cheek intendent, and purchase.” Shields, clerk cover $800.00 January meeting 8, of the testified that at Board, “special question about the 1954,Cahill, answer to yet, purchase but said, fund” “it available that effect”-— a short or words to time, would be “referring pipe”. testified that also SMelds January meeting 14, 1954, at the Board of Cahill “again of that he had ordered the 3100 feet stated pipe, in a time.” The it available short and would reported Cahill recite “Commissioner minutes days.” in about 30 be available the material would undisputed never told that defendant evidence is purported deal, with Board the details whom was made. deposition taken in a civil action Water

In a vaguely against somewhat CaMll, he testified District concerning as follows: deal, department the Federal Gov- what

“Q. And, have material? this ernment was Security Adminis- Federal “A. Oh,--the tration--I mean, the Federal--it anwas agency in Portland. It was General Services Ad- They ministration was one of them. handle the disposal surplus governmental materials within agencies. I had the occasion to write them on an- they suggested other matter and to contact the Army Engineers, Energy the Atomic Commission, something and some for others that I was interested in.” purchased any property

He was if asked he for the and “I district, answered, did not”, but claimed he arrangement” amade “tentative for some materials. He was asked, “How and he “I much”, answered, forget price, the amount He now”. was asked the “I answered, don’t recall.” acknowledged signature He on the minutes prepared December admitted that them, finally they said that were error that he “obligate” purchase did not for the any materials. He denied that he had stated to the bought pipe Board that he had and sent in certified check that amount. He was contradicted Stager, Shields, Baxter, Williams, Bolton, witnesses reported Reed, Brown. He denied that he had ready pipe days, that the would in about 30 as in the minutes. He denied that made shown he the yet finally deposit slip for $750, he admitted that deposit money. the he did said he did not recall He jury testifying grand the a before that for time the yet in the minutes of the court account, testify. reporter that did so show testimony concerning correspondence, Cahill’s alleged correspondence, purchase relative to the of enlightening. pipe, said it in is He Dis- Again, correspondence in trict files. “The the of- Stager prior Attorney testified fice.” produce taking deposition, notice to lie served of the money. purchase, or to all documents relative correspondence correspondence, "butno He wanted the produced. said the corres- At time Cahill another pondence personal "Williams, file. But he told was in his secretary, files. it was his successor as nothing, ac- but found files, clerk searched cording attitude The defendant’s to several witnesses. helpfulness On illustrated, non is follows: of vel January the clerk of the District wrote Cahill 25, 1954, following letter:

“Dear Col. Cahill: procurement used Relative to the fund $750.00 Surplus purchase of Material for War

District. Secretary of the Board, instructions of the

On thorough files this has search of office copy of the letter transmittal been made to the handling governmental department this mat- letter been located. ter. No such has copy you have a of the In the event do not letter requests you your Secretary furnish files, depart- the name and address this office with may request copy for a "bemade ment, which the letter. very truly, Yours C. Shields J.

Chief Clerk” February reply and on Cahill wrote: In “Board of Commissioners District

Taft-Nelscott-Delake Water Oregon Nelseott,

Gentlemen: your date, letter recent reference With proper you that an examination are advised the Treasurer disclose that relieved records will responsibility ofme further or connection with prior your matter date communication. very truly,

Tours Otto W. Cahill” strange by This was attitude taken man duty who had received a trust fund and who had a make full disclosure. represented by depo-

Cahill was his counsel at the Hoy At that Mr. sition. time that there stated was no anything purchased. contention Cahill, as a witness the criminal case, said the envelope cash with in it him was returned to McKinney, always “the been cash in has envelope”. Stager pipe

Witness testified that Cahill said the ordered and that had had been a certified check been very good bargain.” and that sent “This was a Baxter confirmed that said Witness Cahill he had pipe. sent a check for for the $800 meeting testified that at a Witness Williams January during “It was understood this con- versation was asked be returned to the $750 explained that he had Board” that Cahill used plus given an additional and had certi- $50 $750 company surplus pipe. The to some fied check pipe said told feet of 4-inch. He Cahill 3,100 him an Witness Bolton Board it owed additional $50. testimony testimony confirmed the Williams. Allen editor Reed, that of was confirmed also paper, denied that of a and Burt Brown. Cahill local gave a Board or ever certi- claimed from the $50 fied check. thought had been that he

Cahill testified couple He safe “a times”. in Water District o.f combination not have the that he did testified they to admitted he “access where had and then safe, that kept He he didn’t testified the combination.” January 8 were false. the minutes whether know being asked that he did not remember testified Cahill agree- grand jury he made with session whom at “Well, friend of answer, he did not and that ment, reporter’s court show they registered me a little he sore the letter, and correspondence my I said, have However, personal says, correspondence file, and he I took the going and I Naylor’s with the checked, intention of to Mr. got house and when I I downtown saw Naylor Mr. my on the street I and called him over into gave papers car and I him the and the check receipt. Naylor receipt, and a Mr. He said read the * * *” signed ours.) gave (Italics it to him. back testimony had been a Baxter friend of Cahill. His story concerning casts serious doubt as entire alleged Naylor. return of cash Mr. to The de- goes great length give fendant to of a details purported Naylor’s return of the cash at house. Yet, perjurer, if friend Baxter not a is Cahill had told purported occurring him of the same transaction as car on a a downtown street. only We have scratched the surface incon- testimony and falsehoods to be found in sistencies jury necessarily required The the defendant. substantially public all of decide whether officials prosecution appeared falsely, for the who had testified had or done so. whether Cahill flagrant jury prop- In a case as this, the could erly signature Naylor have found that the awas forgery, signatures even if no other had been offered comparison. experts or received for testified con- vincingly forgery apparent to intrinsic evidence of questioned signature from a mere examination of the comparison and without reference to its with other signatures. enlargement Exhibit 37 signature appearing questioned document. Even inexpert eye suggestive it shows characteristics tracing, very photo- of a as does Exhibit a clear graph signature. Stanley same MacDonald, an experienced highly qualified expert, testified, part, as follows: My signa-

“The Witness: conclusion that the Naylor ture 34 D. John on the face of State’s Exhibit forgery ais is based the facts that the signature flying pen—may was not written awith explain jury?—a flying I the in pen that to the is where pen travelling paper is across the as it comes leaving stroke and sharply pointed contact with it tapered beginning travelling still paper across the surface of as it leaves the paper leaving sharply pointed surface of the flying pen final stroke. Now, also leaves thin and wide lines, thin lines and is, shaded lines, bouncing pen and that is caused act of the paper—that as it the crosses is called variation in pen pressure. questioned signature in Now, the Naylor John disclosed State’s D. Exhibit 37 beginnings, quality we have blunt a tremulous line very speed; pres- which indicates slow and the same throughout, bouncing pen sure the act of the has disappeared entirely—the pressure is constant throughout signature, endings the entire and at or terminals the ends are all the which that blunt, indicates pen starting signature paper in this rested on the slowly it before started to move and then moved signature as it come to through of and form the the signature the it sections of the various end the stopped abruptly lifted and started and was signature. a that leaves line Now, the section next questioned signa- throughout the width of the same beginnings endings, and the blunt and have ture, we flying pen— with a not written it was shows which it was carefully, slowly and the tremor written jiggle in the line the little is, that here, disclosed very speed throughout indication slow the is * * *” writing. testimony comparison, the presenting based on After continued: witness # *

“* referring ques- that, In addition signature Exhibit in37, face of State’s on the tioned pen point capital lift at a where D ais there pen pen logically lift, is, would no there point body stopped at that and lifted is the placed Naylor, capital D. then is in John D, again paper before it starts in contact with the leaving spot, same identical in almost the move, stopping joint intersection between pen, something like starting this of the travel of * —(indicating)--* signature re- the witness feature of enlarge- on apparent Exhibit 34 and is ferred layman can see it. so ment, expert testimony given witness Similar Alford. questioned

Concerning the third ex- document, signature en- pert “when testified witness ’’ * * * forgery. apparently very larged many space other discussion of forbid Time jury have warranted would circumstances which unworthy To finding of belief. sum- wrongful conver- established The evidence marize: per- sion of the fund which went into the defendant’s only sonal account and came out checks, in not one of rep- which has ever been identified, even Cahill, as resenting any part a withdrawal of of the fund as such.

It is submitted that this is the kind of in case which § the court should Article 3 of VII, invoke the Consti- Oregon, tution notwithstanding and should affirm, Surely argued the error. it will not be here that Article § 3 of VII, Constitution is unconstitutional. The questions interpretation then relate to its and to the propriety duty invoking longer it. There can no any question meaning pro- be serious toas party up vision. It authorizes either to send the whole testimony, jury, the instructions to the other appeal. matter material to the decision of the This pending done case. The Constitution then imposes upon precedent this court a condition power notwithstanding any exercise of its to affirm only error. (1) Affirmance is authorized “after con- (2) sideration of all the matters thus submitted” and Supreme opinion if the Court shall then be of the ‘‘ judgment was such as should have been rendered”. express requirement may

In view of the that we affirm only after consideration all of matters thus submitted provision testimony” may

and of the that the “whole submitted”, “thus it would amount to an unau- judicial thorized amendment of the Constitution for us to hold that we cannot consider all of the evidence deciding judgment or not whether below should “notwithstanding any be affirmed In error.” this case overthrowing jury; are we not the decision of a we are upholding that decision. argue

It would be futile at this time to provision apply constitutional does to criminal conclusively text eases. The of the amendment indi apply criminal intended to cases, cates that was for it is nothing

“provided, this section shall be con- Supreme the the to find to authorize Court strued guilty of an offense in a criminal ease defendant penalty provided greater than that a is for which the accused convicted lower of which Oregon, §VII, of Art 3. court.” Constitution all are unless we to throw winds Furthermore, power precedents, respect the must hold that our we court to consider the testi- vested this “whole is specified. mony” under the conditions and affirm subject Ragan leading the is v. The case on State P In that case the defend 262 954. al., 123 Or et robbery crime of assault and convicted of the ant was instructing dangerous weapon. being In armed awith jury clear error when trial court committed pistol employed presumes that a stated law imposed upon the loaded, and then in an assault was beyond proving reasonable of the burden From the unanimous that it not loaded. doubt quote: opinion of this we court, foregoing being present we error, “There a trial and new not belive that reversal do only remedy In order to save situation. for the starting delay expense, inconvenience of machinery ponderous trial, of new when- anew crept of this record, the voters into the ever error that so Constitution amended state in 1910 state Supreme provides shall be if Court it now matters opinion, of all the consideration after judg- what that it can determine it, submitted to below, in the court entered have been ment should judgment Art. may to be entered: such it VII, 3e, ^direct testi- all § have read We Or. Const. jury thoroughly and are satisfied phases upon all in its verdict well warranted concerning no com- the case which error was jury The thus found that the defendant com- mitted. robbery. and an act of mitted an act of assault # ^[*] #

“In of the fact that there is no error in view portion of the record discloses that the and robbed the defendant committed complaining assault, of Multno- Circuit Court witness, County judgment enter a mah is ordered to convict- ing of assault intent rob, the defendant with L., described in Section Or. and to sentence penalty.” (Italics appropriate ours.) him to an opinion Ragan propositions. involves two First, charged robbery being a man with assault and armed dangerous weapon guilty of that found crime with judgment may verdict and in the circuit court guilty by judgment Supreme found and convicted although charge assalut intent to rob, Court of with tried for on which he was below was violation of OCLA, (now 163.280) § and the crime of 23-428 ORS which by guilty Supreme for was held Court was viola (now § tion a different 23-427 statute, OCLA, of ORS 163.270.) Ragan proposition in the case The second goes is relevant here. It not to the is the one which duty power propriety of of this court but acknowledged power. exercising The error committed only charge by related that de trial court weapon. dangerous It had armed with fendant was bearing evidence which established no on the robbed the vic committed an assault and defendant Ragan for v. stands our decision State tim. Thus proposition “all of the testi if read we jury thoroughly mony satisfied are and verdict” on the basis in its was well warranted by a con error, not tainted evidence which was 578

n victionwill be bearing upheld in court. this Eagan is clear. In Cahill’s case that of Cahill may equal propriety say that have read we case we with jury testimony war and that the was well all of the finding guilty of identical ranted may charged do and this we indictment, crime the conclusive evidence that he converted on the basis of public part him all of the funds entrusted to if not withdrawing authorizing personally his wife to using trust from the bank, these withdraw funds permitting use them, his wife to them himself por purposes his trust. This is a not connected with “concerning no com error was tion of the case long guilty of conversion before for he was mitted”, Naylor—long got receipt before from he claims he any questioned for examination document there was experts. in 1951 and 1952, If he converted the fund regardless complete, of whether he re the crime was repay forged paid it and in 1954or did not the District repayment. States, v. 157 Dobbins United evidence 259. F2d Ragan It has not stand alone. been does

State v. Wye, approval v. 263 P 595, Or cited with State 150 P2d 17. Folkes, 174 Or 60, and State v. P defendant was Adler, 70, 142 v. In Or State receiving property al which was stolen convicted corporation, belong no evi leged there was to a but company facto cor named was even de dence that poration. appeal consideration this court On “after (italics ours) submitted” the record and evidence judgment opinion that the that it was of stated have been rendered appealed such as should from was judgment “notwithstand affirmed was case, * * any ing errors

579 Karpenter, In v. 120 Or 250 P 90, 94, State 633, P 307, 251 court said: this from all that the

“But aside evidence is all be- According including court. the record, fore this the the duty it is the of the court affirm evidence, judgment the defendant under Article YU, of the Constitution. The defendant 3c, Section was by juries different tried A two convicted both. testimony consideration no leaves careful mind, doubt that he is our much doubt, less reasonable ** guilty. (Italics ours.) also, See Newlin, 589, v. 92 182 P State Or State v. 133; P Catholic, 367, 75 Or 147 372. supra,

In v. P Newlin, State Or 589, 133, the court said: * “* * Admitting principal that the witness prosecution reputation, man

for the is a of bad person liquor to whom defendant sold the juryman character, is of doubtful no fair sane, testimony could have listened to the adduced and thereafter have entertained the least doubt as to guilt perhaps of the defendant. And we could stop principal at so far this, as the contention is our concerned, and base decision YTI, Article Section of our amended but in de- the de- 3, Constitution, argument ference to the able fense, counsel objections briefly urged we will consider v. also, Catholic, them.” See State 75 Or 367, P 147 372. Burghart Haslebacher,

In ex rel. v. 125 Or State charged being 266 P with illegitimate guilty A father of child. verdict of technically proceeding, The ease civil returned. similarity quote: cases, but due to to criminal we its required and received case has careful “This scrutiny Trifling and minute errors have and consideration. they likely crept into the record as are going prius over trial, nisi but after to do 580 testimony once but several times the writer say opinion in the course can that never whole of this years experience thirty-five on the bench of his proven circum- a case which he examined has testimony complaining of a stances corroborated present greater in- than to a extent

witness where the element case, it a criminal stance. Were imagine he cannot intervenes, of reasonable doubt a hesitating jury for one moment to convict. And slight may conceding have been devia- that there procedure, result arrived at from technical tions was correct. ‘‘ our of Article VII of Constitu- 3c Subdivision appeal upon provides an to this court the in the

tion whole case at testimony may up, as was done be sent if examination of the matters bar, and, Supreme shall be satis- Court submitted, thus judgment notwith- affirmed, should fied they standing any on the trial, errors committed way may blazes it. This amendment affirm justice and in like cases.” case this true Bartlett, 560, 141 18 v. Or ex rel. Rivinius State charge. The court a similar said: involved P2d appellant part quite agree of the with “We given were to corroboration relative instructions any in our minds there were doubt erroneous. If assign guilt such defendant, of the relative to However, result reversal. exami ment would that the ver record convinces us nation entire proper. therefore invoke We rendered was dict salutary provision section 3c VII, article Oregon, court authorizes this Constitution notwithstanding judgment the errors to affirm the taken in a similar case action Such committed. (State Burghart Haslebacher, 125 389 v. Or. ex rel. (266 900)), ‘This amend said, court wherein the P. * * ” justice way V true ment blazes (Italics ours.) d P 974, 129 Or defen

In v. Metcalf, State stealing. said: The court of child ant convicted technically attempted review “We have proceedings do not find trial, incident prevented view, in our error which, in them having trial. is a from a fair Seldom long without some present one conducted out trial like drawn creeping in. But even technical error assured committed, we feel if such from the had been error took this evidence that parents for the vilest of of her child from the home kept purposes, as to his concealment, her in lied person knowledge her for used whereabouts, of her clearly guilty pleasure, he is and that his own by charged 1 of Ar- 3c of Section subdivision and, fully we would be Constitution, ticle VII of judgment face even to affirm authorized of sity.” no such neces- but are under error, technical we P a 568, 815, 247 al., v. et 118 Or Mount Welsh jury court said: case libel. This civil “* * * the evidence is bar, In the case at entirety. reported court It follows that this in its disposition empowered final of the case to make judgment should have been to render and v. Port of ex rel. Anderson State rendered below: (124 Ann. 637, Pac. Cas. 62 344 Tillamook, 332, Or. 483). By here, retrial of the case added 1914C, responsibilities labor devolve and additional duty under the Con- case, in the instant But our us. plain. court, this seems as determined stitution long pending time. in the courts has been The case The litigation come an end. With should involved pre- complete are as well us, before we record apply and the law thereto pared facts solve the jury.” trial as is DeJonge, 51 P2d 315, 674, Again, 152 Or v. in State ‘‘salutary VII, of Article mandate referred we § constitution.” 3 of our

582 duty imposed upon

Relative to the us Consti- § tution VII, 3, also, Burke, Article see v. 126 State Or P 651, Cooke, 269 270 P v. 130 674, 682, 869, 756; State P 552, 936; Or v. Friddles, State Or 123 P 904.

In this critical when dockets are time, cluttered, good cringe tragic men must fact of when before delay, sending we see no merit in this defend law’s conclusively ant back for a he has trial, new when so jury proven guilty to the of a himself satisfaction beyond doubt. reasonable emphasizes provision

The constitutional salutary provisions 138.230under broadens ORS will not which it has been often held conviction for technical or defects which do reversed errors rights the accused. If the not affect the substantial change law, constitutional amendment made no adopted. inquire why pertinent it would be re one fact examined, After the cases have been Oregon is our fundamental mains. The Constitution applies simple This court is law. It test as follows: and hav submitted”, “all thus to consider matters the opinion ing supreme “if the court shall be of done so, * * * * * * judgment such should * * # judgment such shall be have rendered been ** Oregon, of Article affirmed Constitution § VII, 3. longer game it is a search wits; no of

A trial is justice. found truth in the evi- have for truth and We justice prosecution of and verdict dence of the jury judgment have examined of court. We the the assignments error and find them without of the other judgment is affirmed on the conviction of merit. The authority § of 3 of Constitution VII, of Article Oregon. dissenting.

ROSSMAN, J., dissenting, part concur in the of I, course, In majority opinion holds that substantial error which objections, over defendant’s when, was committed testify. handwriting experts permitted to were the three my opinion, in demands reversal. The error error, That majority acknowledge. greater It than experts amplified used checks, which the when nine comparative purposes, were received evidence. for they the defendant made valid offered, When were objections have been sustained. The which should jury juryroom when were sent with the checks likely very upon they were verdict, deliberated handwriting expert truth, is, A used them. pains expert kind take of that witness. Witnesses per- develop making effective and themselves skill testimony upon can- Their stand. suasive witness They nonprejudicial. in- lightly dismissed as not case. Those words factor in the a decisive tend it to be handwriting experts, reproach for as a are not intended emphasizing purpose expressed that for the but are acknowledge majority occurred, error, which demands reversal. may opinion majority those cause

The nature of infer of this case to facts are unfamiliar with who 1951, when June occurred the transaction which that should a check district resolved the water necessity created favor, in the defendant’s be drawn a trust relationship became a trust relationship established was then fund. admit does The defendant case. of this the heart a trust receipt became it the guilty put pleaded in fund. When not he issue the he charge that he received the fund as trust res. Whether day relationship a trust was established relationship that of debtor-creditor was whether jugular It vein of the a vital issue this case. is the relationship was one of debtor- case. I believe that presently show, I shall instructions creditor. As jury virtually the defendant took that when told jury it. The was became trustee of he province in he received the which told to determine the given money, crystal it no clear that and it is whereby he could ascertain whether criteria or test such or as debtor. Had as trustee received questionable given, it is at least been an instruction guilty. been found defendant would have whether the of the of commissioners 1951, the board June met. The defend- district water Taft-Nelscott-Delake secretary of the board. a commissioner ant was compensation com- his services as no He received During secretary. of the the course or as missioner need of district’s meeting, mention was made honorably discharged an pipe. defendant The rank of colonel held the II, who of World War veteran serving discharge. overseas While his at the time of injury corps a serious he sustained the air with vet- discharge as a disabled was classified need for During the district’s the discussion eran. article an had read that he pipe, recalled defendant gov- magazine engineering stated which pipe of its surplus and that one possessed ernment priorities veterans to disabled agencies offer would gave com- his fellow purchase. its gained from had information missioners expressed that thereupon a wish was magazine and Presently a pipe. resolution some he obtain adopted contemplated purchase by him. which a It read as follows: “By sum consent the unanimous $750.00 personal account

authorized to be transferred to Secretary purchase for the of material and of the * # equipment “Secretary” standing by might signify itself The word required put the into the defendant was any to that an official but effect is account, surmise negatived purpose of the resolution and the personal following words “to the account.” The clerk board, state, a witness for the testified: as “* * * board at that time and the water personal account the sum of transferred to his purpose.” for that $750.00 through paid a cheek

The sum of The check district $750. the water payee the case. It named as its an exhibit this ” “ ‘‘secretary, com- No as word, defendant Cahill. such indicating pay- “agent,” “trustee,” missioner,” capacity, in the check was inserted in a restricted ment day after he received name. The after defendant’s joint deposited in bank the defendant the check, At the end of and his wife. of himself account by the bank to check returned cancelled month the perforation read: “Paid which district with the water Accordingly, when month, end of the at the 6-12-51.” checks bank its cancelled from the received the district listing deposits customary statement and also paid had been it noticed withdrawals, the defendant. meeting 1951. of June return to the

nowWe remuneration no received said, Ias have defendant, secretary of the a commissioner his services meeting, during the course of the mention When, board. pipe, needed the defendant was made that the district subject. have interest in the Others who had two-fold upon met alike to the one which served boards in a have found themselves situation 8, 1951, June dealt; one the defendant similar to the with which the individual can do board, a member of the is, as concerning nothing ac- some matter which more board, other member tion is desired than board of di- or as a member veteran, but, as capacity, he can other rectors of a bank or some present procure instance, In result. the desired upon discovering needed that the district the defendant, pipe, he had if the announcement stated that a dis- could, that he as read correct he believed was pipe. get of the members some veteran, abled surely commissioner, as a that, realized board nothing and the each of them which could do (the superintendent) agent could purchasing board’s he had su- veteran, a disabled as well, but, not as do pipe. fellow his perior Therefore, when access to the gov- buy requested of the some him to commissioners pur- they pipe, him to make not want did ernment’s name, in the board’s nor commissioner chase as water capacity aas disabled and in his name own but his receiving expected they after him,' course, veteran. Of district without pipe, the water it to to transfer money manifest that profit it is Thus, himself. nor as a commissioner given defendant, to the was capacity. his individual secretary but in board, adopted was reverting which By resolution money that the directs evening, that it seen it will be “personal to the defendant’s transferred should foregoing that the board from the note "We account.” “per- inserting the words purpose in a definite had 58T They important sonal account” the resolution. were plan. board’s It the defendant to deal wanted pipe personal with the with the his give capacity. fail now to those words effect is To changing tantamount the nature of the transaction post ex facto.

The nature of the transaction which occurred in meeting June, the board was no means strange. The record indicates that when the resolution passed, popular was the defendant was well liked throughout the area. He had confidence of his he fellow commissioners. While with the armed forces engaged phase engineering in some was returning discharge placed engineer- after his his ing experience to the avail of one of local munic- ipalities, thereby adding prestige. Thus, to his when given was to him it to an in- handed regarded. year dividual A or more who was well later he became involved in some controversial activities him and to activi- friends, cost some of his those I am ties he attributes troubles. not concerned good with involvements and have mentioned the those for him at time of the will which manifested only purpose indicating transaction for the action reasonable. board’s not an veteran,

As a disabled the defendant was By including fiduciary agent of the water district. “personal the account” in the the words resolution any imputation negatived that it had in mind a board money relationship to become a or that the trust day when The board looked forward trust res. convey pipe of the value of at to it the would get pipe, him to the in order to enable $750, and, least payment him of Since the an advance to $750. made capacity, money paid him in his individual to given payment him a fund. The to as trust debtor-creditor relation- to him of the created a trustee-beneficiary relationship. ship, is fair It not a thought the defendant board that to believe the pipe convey the district to to water could be trusted ability upon or, the value of absence $750, money. repay part the to do to so, his says: Law, Trusts, the Eestatement of Section “A not a trust.” debt is g declares: Subdivision money person pays it de- another, “If one parties

pends upon intention of the manifested If the intention a trust or a debt is created. whether separate kept money used as shall be is that the payor person, or a third for the benefit of fund person that the If the intention is created. trust is receiving unrestricted use have the shall being pay amount whether liable to similar thereof, payor or to a third interest to or without with person, created.”

a debt is following § taken: Bogert Trusts, 15, From may acquire property agent ex- “An penditure a contract with under own his arrange- agency part principal, made as a property agent deal with will ment, may may principal principal direct. Or agent directly property interests transfer understanding. In both a similar contractual under general agent a broad is, ‘title,’ has cases subject to con- property holds it interest, principal, enforceable in favor of duties tractual express trust is intended No in a court of law. why implied trust should be is seen no reason such cases presumed It is believed to arise. things, specific general property, holding agents their subject merely duties toward contractual principals, not uncommon. are “Frequently agent him has delivered to money personalty or other which is to become his property, absolute agrees in consideration of which he pay out from his own funds later principal. tendency on behalf of the There can be no agent personalty to treat an who receives such complete subject merely He title trustee. takes duty.” a contractual paid I am satisfied the defend- capacity relationship ant in his individual and that no except resulted from transaction one debtor- creditor. of a

Still further indicative debtor-creditor rela- tionship, trustee-beneficiary, and not one of fact is the authority pur- that the defendant had no whatever to any pipe chase for the even district after the resolution adopted. of June 8,1951, was That resolution read: “By unanimous the amount consent of $750.00 personal to be was authorized transferred to the Secretary purchase account of the for the of ma- equipment inspection terial and in the event such items determines that district will benefit purchase.” from such Mr. F. H. Baxter had a member of the board been water 1951 and in testi- since 1953 became its chairman. He fied: analysis, super- “Q In Mr. Baxter, last purchasing? all

intendent and the clerk do would get you. “A I don’t analysis, say, superintend- I

“Q the last would ent of board and the clerk of the board purchasing that correct? do the for the board—isn’t They purchases. “A are authorized to make Any large purchase, purchases. That small is, come the board. course, would before “Q entire board? But it would have to be superintendent, inspected it, wouldn’t be- —fore inspects “A He the material that comes to the yes, sir.” board, upon

It is seen from the resolution that it conferred purchase any pipe power defendant no to behalf the testimony the Baxter, the district. And of Mr. who of a the clear that state, was witness for renders it none power possessed purchase any- the commissioners to thing purchased for Had the the district. defendant any pipe, he would have done so as an individual. If purchased pipe upon officials, he which the district’s inspection, accepted, he have would, course, con- veyed pipe thereupon the the district and the $750 discharged. had But if he made debt would have been accept purchase a the district refused to he would acceptance powerless to have forced the have been plight pipe. reason for his would have re- the The from the that the district had not conferred sulted fact carry- anything. purchase power him to Without analysis ing that, state nor- further, it sufficies to subject mally, limitations. trustee The is not such already that the indicated, as is, essence of matter contemplated pipe defendant, transaction that seek find material which disabled would veteran, approved superintendent district as suit- of the water Thereupon the defendant, needs. able for the district’s pur- approval, gaining make the the needed would after upon receiving pipe name, chase in his own district. it to the would deliver which indicates that another circumstance Still is fact that the state a trustee was not peremptory de- made a district water claims purported return mand trust res and in way relationship. terminated the Trust relation- ships cannot be ended in that manner. Bestatement of § the Law, Trusts, 330, reads: “(1) power The settlor has to revoke the trust

if and to the extent that the terms of the trust power. reserved such a he “(2) Except §§332 as stated in settlor cannot trust if revoke the the terms of ’’ power the trust did he not reserve a of revocation. relationship The manner in which it claimed that is brought proves relationship ato close that no trust parties. relationship existed between the of debtor and creditor.

Now let us how the instructions see which were given jury subject just dealt with the reviewed. apparent It must be whether defendant became a trustee when he received became debtor paramount importance. Unless a trustee, charge the must fail. If that issue was never submitted jury, clearly, to the then, the defendant had has never by jury upon plea guilty a trial it. His of not demanded jury. that the should be issue submitted to the The jury nothing instructions to the said whatever about relationship. a debtor-creditor The words “debtor” wholly and “creditor” are absent from the instruc- jury tions. Not intimation to the even was made possible, that it the when the defendant received jurors a he became debtor. Unless the were wiser $750, they they than the that instructions, did not know receipt him could find that his of that made a they given Not how debtor. a hint was to them toas distinguish relationship could one from the other. the whereby yardstick formula or mentioned rule, No payment jury the to the the could determine whether something a defendant created debt or else. trust, Of jury course, instructions if told under the “you beyond evidence believe a reasonable doubt that guilty, your duty your the defendant is it is under oath ’’ bring guilty. Obviously, jury in a verdict of needs quoted. help just than is more afforded words determining or not the defendant, In whether receiving money, debtor, became trustee or a jury surely help of a definition or criterion. needed majority, analyzing the situation, The have resorted it, therefore, to the sensible to infer law books jury informed the man that the better than Possibly following said the bench. will be that the instruction filled need: beyond you find from the evidence a rea- “If County, defendant Lincoln sonable doubt Oregon, alleged in at the time the indictment did possession and under his control cer- have in his tain sum of money belonging to Taft-Nelscott- * * * District Delake Water * * the sum to his own use did convert give others, failed instruction, like the But whereby jury it could determine whether rule belonged after it the water district not the $750 paid the defendant or whether defendant, w;as subject to a debtor-creditor became owner relationship. jury: told the instructions admitted W. Cahill has “The defendant Otto money Taft-Nelseott- received

that he $750.00 District. Delake Water public Oregon provides of- that a “The law municipal pay required over to law ficial is municipal money belonging cor- corporation public possession of such poration capacity official at the termination of official his public as snch official.” The defendant at no time “admitted that he received money of the $750.00 Taft-Nelscott-Delake Water Dis- repeat, trict.” I he never made such an admission. attorney, addressing Toward the close of the trial, judge, the trial declared: please,

“If Your Honor I think—it will shorten very anyhow— matter, the I it is not material testimony deposit—the I think think, on that questions whether check was $750.00 deposited testimony for a time, of the defendant was in error.”

Later admit he added: “We will deposited.” Certainly those words were not ad mission that the ever became trust fund or that possessed the defendant of the Taft- “$750 Nelscott-Delake Water District.” I return to the words quoted instruction which said: “The defendant Otto W. Cahill has admitted he received $750.00 money of the Taft-Nelscott-Delake Water District.” preposition according “of”, to Webster’s New Dictionary, following International 2d edition, has the “* * * * # meaning: belongingto; Bouvier’s Dictionary, “belonging Law 3rd revision, it defines People to.” In v. 334 Ill Wolf, 218, 165 NE 619, charged “unlawfully, indictment the defendant feloniously, wilfully maliciously did set fire to and burn a certain barn of one Everett Steele.” A state provided ute that in an indictment for arson “if the building allege occupied, shall be sufficient to building property to be the of the owner, lessee or * *' occupant argued thereof; The defendant that the indictment defective inasmuch as it did allege, according

not to that the barn the him, property overruling In of Steele. the the contention, court said: meaning given “One of the word in ‘of’, Web- Dictionary, ‘belonging ster’s International is New meaning plain to’. The of the ‘a words barn belonging it is Steele’, one Everett a barn is Thjs property to or the of Everett Steele. is the jurisdictions adopted in other

view that has been question has arisen.” where the State, Davis v. The 38 Ohio St was based charged burglary in it was an indictment for which feloniously broke into “a certain that the defendant Morgan County infirmary dwelling the house, to-wit, * * claimed that the indictment Morgan county. charge ownership The court did not in ruled: agree. language Taking

“To we cannot the this ordinary meaning, in this con- ‘of’, its the word ‘belong- equivalent property ‘the of’ nection, is ing to’.” preposition “of” in the instruction the

The use of slip given deliberate not case at bar very requested tongue. instruction The of the state given precise quoted, words I and it was request. of the state’s given meaning trial instruction coupled “ad- judge words manifest. Since is ** * money Water he received

mitted $750.00 duty public charge it is the of a District” with municipal “money belonging pay to the back official * * * possession at corporation in his which is public capacity of- as such of his official termination clearly given jury understand were ficial”, the belonged That money district. water to the especially true inasmuch as the instructions did not jury tell to determine whether or not the gave jury was a trust fund, no criteria whatever whereby it could have resolved that issue had it been assigned body. to that Since the defendant did paid claim that he district water upon the termination of term as a commissioner, the instruction was tantamount ato directed verdict in favor of the state.

This dissent should not be concluded without men- tioning majority opinion that much is contained in the impression which can create the erroneous the virtually defendant, his conduct, conceded that he money reading received the aas trust A fund. of the dispel any impression evidence will of that kind. When kept money the together defendant testified that he the receiving thereby after it he did not indicate that it endeavoring constituted a trust fund. He to ex- was plain constantly pay money that he was able to back the acquire pipe. the event that he was unable to His repayment defense was and, the state since had intro- ledger showing duced in the evidence bank sheets rarely the defendant’s account $750, held the defendant constantly tried to show that he had cash on hand. $750 he witness, As testified more than once that when money put he received the he was authorized to it in his bank if he wished; account so he “I added, testified grand jury, before the in accordance with the minutes meeting, my put I the was authorized to it in ac- own testimony fairly count.” construed, When his no ad- mission can be found it that the defendant admitted money that he the as a fund. received trust proceeding phase Without further this of the with my express I belief defendant case, that the did the a trust fund. In receive as event, $750 pertaining should to issue thereto have been submitted jury. judge Error when the trial was committed jury quoted gave which I the instruction when jury any give the instructions as he failed whatever they whether to how could determine capacity given or in a to the defendant trust relationship. debtor-creditor I turn another I now error which believe majority have seen, as defendant, make. we denied fund. on a trust He went that he received $750 January paid 21, on he back the swore produced money. defense, In of that substantiation “Receipt” signa- paper and testified entitled Naylor, treasurer of the that of John D. ture to it was acknowledged paper receipt from water district. The January 21, 1954. sum of Naylor’s, signature then defendant’s Mr. If the testimony repaid was corroborated. that he January repayment 1954,it was made made If day when the water district in advance well against proceeding defendant, civil instituted the prove re- demand for state relied predi- upon payment. is this case The statute by Oregon (OCLA 1941, Laws amended 23-525as cated 165.015]) quoted present in [in is ORS form ch quotation majority opinion, omits part but the governed I which, believe, the statute words of the are: material words trial. the The any person what- receive shall “If * ** municipality or other state, for this ever * ** neglect or corporation shall public or * * * any portion pay thereof over refuse person lawfully shall do, such demanded so when * * larceny guilty of be deemed quotation majority opinion from its omits lawfully demanded so to do.” Those “when words my opinion, in the essence of the were deemed words, purported court. crime the trial charged that the crime com-

The indictment February specified mitted 1954. It also the time 1, by alleged using when the offense was committed these “wilfully feloniously fail and words: refuse to pay lawfully money then over said sum of demanded so to do said Taft-Nelseott-Delake Water District.” in a Thus the indictment identified two-fold manner alleged specifica- time offense. One of the day given in the indictment, tions was the is, February day 1954. The other was the when 1, upon pay defendant back. failed, demand, to The de- February so the indictment mand, said, was made 1, February 1954. The state claims that on 1, 1954, verbal demand was made the defendant and that shortly against district afterward water filed proceeding $750, civil but now it develops, majority right, if the that the crime did February years not occur on but 1, 1954, two prior not seven months thereto. And it did consist of alleged repaid upon failure of defendant to have permitting but his action his bank account demand, drop It can be demonstrated resort below $750. attorney prosecuted the district to the words of who during state contended trial this case that the February committed 1, 1954, crime was July defendant’s bank when the account than to a balance of less One of the $750. declined prepared by requested instructions, dis- state’s attorney, trict declared: Jury, you If and Gentlemen find “Ladies beyond a reasonable

from the evidence doubt that County of Lincoln and State alleged Oregon indictment at time possession and under control a did have in his certain sum of his

money belonging to the Taft-Nel- Taft-Nel- and that the District, scott-Delake Water scott-Delake Water Distict is municipal corpora- Oregon, defendant did convert tion to and that the * * the sum of own use $750.00 alleged in “at the time I attention to the direct words requested of the instruc- The words indictment.” say if the defendant committed tion on to that went “by failing by converting or re- the act lawfully pay fusing when demanded over the guilty.” Upon you a verdict of return should do, so crime was com- the state claim occasion did no for no instruction time. It asked other mitted at immaterial. in the indictment was time stated not presenting state has court, its case to this In indicated from the time relieved asked to be given requested ver- instruction was The indictment. jury. to the batim fairly to mean that construed can be

The indictment alleged water district funds was conversion of the district’s when, after the defendant committed money. repay repayment, failed to demand requested instruction, from the state’s I believe paragraph, quoted framed in the above I charge. understanding 132.560 of the ORS upon in this state results represents enactment enlightened effort. It four centuries more than states: charge crime,, one but must indictment “The ** only, except that: form in one ease. in this ORS' exceptions material are just quoted. provisions

132.530 is supplementary It reads: as and certain

“The indictment must be direct and the charged, the crime charged, to the party the crime when charged circumstances of particular to necessary such circumstances are constitute crime.” complete provisions those wholesome

But, notwithstanding re- attorney and the fact that the district of our laws that if that charge body trial to judge the quested the alleged found that the defendant “at time to his use indictment” converted own that the indictment in district, water the find majority Thus say: count crimes. single charges many they its * " “* The indictment that defend- charged ant the fund to own use and did also converted and to that he failed refused over the charge pay * * * have fund. It f ollows that conviction would been on evidence reviewed undisputed above, the proper of the fund and conversion its showing, (1) deposit last day after 1951 on which July 3, the piecemeal fund remained intact the bank account, the the fund was never withdrawn as (2) proof used such but was withdrawals up by personal from the account.” in that manner,

In the indictment construing motion that no was made says prevailing opinion the state to elect whether require trial court the failure conversion feature on stand would demand. answer seems return the fund upon that kind made be- no motion of obvious. Plainly, the defendant no afforded attorney cause the district a motion. He elected to stand such to make occasion indictment.” See State “the time alleged 276 P2d 946. 202 Or Lee, v. alleged treating (a)

By offense as the time July (b) February and not 3, 1951, charge neglect to maintain bank nature of the pay upon failure demand, and not balance charge upon majority alter which the defendant way they prosecuted in hold that his such They say repay- immaterial. entire defense was charge of to a embezzlement ment no defense committed at errors which were therefore, that, his defense the defendant in connection with cost of prejudice repayment In fact, him. without did not they saying, expressly had valid find that he no so might and his as well He witnesses defense whatever. According majority, stayed at have home. guilty account the moment his bank became happened that he had no When retreated below $750. Ms it is remarkable that crime, If that defense. was years and months before for two seven the state waited charge against seeking the him was indictment. If predicated upon on condition of his bank balance the extraordinary July the that district it not 1951, is judge attorney that were unaware of and the trial guilt established the moment the fact? If the ledger produced the sheet, defendant’s the bank clerk objections prosecution rested and would could have the all evidence which sustained to have been plain presented. that no one It is thereafter defendant conception participated entertained the in the trial who charge against which this the defendant of the guilty. him finds court alleged offense, the time of the that

I am satisfied developed at indictment and as in both as stated February and that the defendant 1, 1954, the trial was charge in the wronged accorded treatment is opinion. prevailing justified treating prevailing opinion

If it have above, the case in the manner described would § no VII, occasion to resort to Art. Constitution Oregon, provi- that but it out and reaches embraces inconsequential doing sion. so it the errors In deems (1) which committed over the defendant’s when, were objections, testimony experts three re- (2) objections, ceived; over defendant’s when, received in in af- Further, nine checks were evidence. firming unimportant as conviction, brushes aside following testimony all of the which produced (1) in his favor: The defendant swore that January days prior on 21, 1954, few the death of Naylor, John treasurer of the water he district, D. Naylor him handed to home the sum of $750 thereby discharged obligation. (2) The de- Naylor sign fendant Mr. swore he saw the chal- lenged receipt signature experts and that the which the forgery Naylor’s genuine signa- branded Mr. (3) ture. The defendant’s wife swore that she accom- panied the defendant his automobile when Janu- ary Naylor’s he drove 21, 1954, to Mr. house she he noticed when left the automobile to ascend the steps leading envelope to the house carried an con- he taining currency. She also he later swore when longer envelope had the returned to the car he no but receipt placed glove displayed com- partment Naylor, (4) D. of the car. Mrs. John as a January, testified that in a state, for few witness days prior death, to her husband’s the defendant visited (5) him Borton, home. B. who had known in their W. years—-I say great Naylor “for of number would Mr. had had business transactions with 1933” and since signed by Naylor, brought him him checks Mr. challenged receipt signature upon the swore Naylor’s. (a) (6) L. E. had Flutz, was Mr. who known Naylor many years, (h) Mr. for had him served with monthly years on the for three board trustees of a Naylor many sign (c) Mr. had seen church, times ques- signature, he swore that when was shown Naylor’s positive “I am it Mr. document, was tioned ’’ signature. January repayment 21,1954, If the defendant made upon purported demand made did so before charge him indict- therefore the contained very I it is doubtful add that ment can not be sustained. made him for was ever demand whether February repayment. the chair- 1,1954, is true that It telephoned defendant, to the district the water man of repayment for but for not a demand but the call was concerning correspondence A few $750. the files attorney February for days the water 1,1954, after proceeding against the de- a civil instituted district proceeding claimed and it is fendant, jury: judge charged the The trial the demand. that the commencement instructed “You are recovery money lawful for the is action a civil money, pay over if he the defendant demand plaintiff.” has, not introduced pleadings civil action were in the attorney for the water board who but evidence, complaint, the state, for as witness

prepared in these words: of the case the nature described Hoy, brought, one for an I Mr. action “The accounting.” obviously, accounting, not a demand suit for A money. payment of mentioned, is seen above considerations From charge stated bound court is if this attorney, district construed and as indictment

603 presented court is the a defense which this defendant liberty Nothing disregard. in Art. contained at to justifies Oregon, § the course of YU, 3, Constitution majority taking. which are the supporting opin- apparent purpose

For the of their majority say testimony ion, the that the which was by given Stanley Mr. MacDonald, one of the three handwriting experts testified, who indicates According signature upon receipt tracing. the awas questioned signature presented to Mr. the MacDonald, having by flying pen.” “a no indication been written jury’s sharply He called attention “a the lack of the pointed tapered beginning or stroke” and commented upon sharply pointed of “a final stroke.” absence Accordingly testimony, pressure to his “the is constant throughout signature endings the entire and at the the ends all blunt, are indicates terminals which pen starting signature paper rested * * *. it started to move that leaves before Now throughout questioned a line of the same width signature.” Naylor that Mr.

The swore wrote questioned signature bail-point pen. a A with ball- point pen produce exactly the result described would point begins Mr. MacDonald. At where it impart appears, paper a small ink to the blurb thus accounting beginning. for a If there is blunt doubt subject, “Aspects Forensic Science, R. Harrison, Bail-Point Pen” Wilson Criminal dispel Although the doubt. Law Review will Naylor bail-point pen, that. Mr. used defendant swore attorney nothing Mr. MacDonald con- asked the district writing pen cerning the characteristics undisputed produces. The evidence shows kind of that January he is said when to have 21, 1954, that on signed questioned Naylor receipt, very Mr. was a days sick man. later. He died few opinion points prevailing As the the three ex- out, perts permitted compare signature upon were purported signatures receipt ten other of Mr. with signatures, majority Naylor. Nine those hold, as the have been ruled had 42.070 would admissible ORS given agree majority I effect. that error been with objections committed when the which the defend- experts testimony over- ant made to the of were majority experts ruled. But the assume the three given identically they had have the same answers would only signature Naylor permitted of see the one been genuine. I conceded was do not the defendant assumption. S. who is Osborn, in that Albert concur preeminent authority regarded commonly on questioned in “The states his volume Prob- documents, page 42: of Proof”, lem comparison provided in of first standards

“The many disputed too in num- cases are few document finding and the kind, and not suitable ber comparison adequate of is standards suitable preparation steps taken in the to be first one kind.” case of this of a page adds: at volume, same

The especially that a desirable is sufficient “What specimens writing quantity and of succession of as means test- matter be secured of the same ’ ’ disguise. ing 2d “Questioned Documents”, treatise, other In his says: page Mr. Osborn at edition, always signatures obtained, be should “Several rendered, decision is possible, final before if five constituting always a more satis- signatures being opinion factory than one and ten basis five.” than better

Wigmore says: on Evidence, §709,

“(b) another is, however, There consideration, present principle, also adequacy based that of e., i. knowledge. of the witness’ sources of The type handwriting witness to the must have formed in his mind a standard based on the ob- specimens; inquiry servation of must naturally (ante 694-698) §§ be made whether specimens he has seen sufficient have been in num- * * quality questions *. ber, must come for Now same dealing

settlement with the kind expert. may of objected witness, His sources of belief (1) specimens because the laid before (a) him are not sufficient in number, because they of unfairly, purpose have been selected for the

aiding peculiar view.” why expert disposal reason should have at his genuine signatures a number of when he his makes comparison gives opinion people is because rarely signatures exactly large their write the same. A genuine specimens acquaint number of is essential to person’s writing. the witness with the characteristic only expert many samples, Not should the have it but signatures, admittedly genuine, is desirable that the upon paper should have been written and cir- under substantially cumstances the same as the contested signature. altogether possible expert It is that if the only single signature witnesses had been shown the they which was admissible in evidence would have de- saying clared that it afforded an insufficient basis questioned signature genuine whether the or not. developed There are other could reasons which opinion, go in I on. this but shall not The above suf- opinion majority fices. I am convinced that the is challenged judgment unwarranted. The should be reversed. dissenting.

TOOZE, J., majority opinion, for one I from the but dissent application only. of I cannot to the reason subscribe being Oregon § made Art. of the Constitution VII, by majority opinion. in its by only offered

The affirmative defense repaid to the treasurer in case is that he this re- and treasurer’s of the district obtained the water repayment. ceipt admitted that he had for such He receipt money. The state attacked the received the being forged and the error committed document, as majority, that is conceded trial, on the error alleged forgery. directly manifest, It is to this related erroneously admitted therefore, the evidence very gist against defense. of his defendant touched not improper evidence admission this sug- proceedings merely defect a technical goes say gested that error which To OES 138.230. very directly defense is of the substance willing go goes prejudicial I am much further than prejudi- presumed to be other is case; this or requires prejudicial say a con- that it is not cial. To weighing and circum- all the facts and sideration evidently is what case, stances is majority this court least, In at sense, done. has theory dif- re-trying of the case facts, upon the trial. presented state from that ferent majority opinion, defendant’s I understand As deposited in his complete when crime was turning (the banking personal account resolution own done), that that be him over to directed withdrawals, account, because the balance then all true, If that that sum. below reduced charging defendant allegations indictment repay demand, which failing the to with larceny would constitute under the statute for an al- leged prosecuted, violation of which defendant was surplusage necessary part became mere and not a charged unwilling the crime I the indictment. also am theory to subscribe to that because, Justice Rossman ably opinion, allegations so in his demonstrates those particular charged, are essential elements of the crime necessary prove and it was them to a con- warrant necessity being viction. Defendant was under prepared against Repayment to defend these. was such offering a defense. The state its evidence on the recognized necessity. produced trial this It substantial prove allegations. point evidence to those is, how- acknowledged ever, error in this case, which majority says goes prejudicial, now very heart of defendant’s defense in answer to those theory adopted by majority If the averments. correct, this case is then it is manifest simply charge against had no defense to the him. He up quit fighting have should thrown hands and According instant the indictment was returned. to theory majority, really nothing of the there for jury pass upon; it had no alternative than other guilty. to find defendant (adopted 1864), statutory first in

ORS 138.230 language predecessor found in Art. VII, Oregon § upon by which relied Constitution, majority authority affirming judgment as its notwithstanding of conviction the error committed on provides: trial, hearing appeal, [Supreme] “After the court give judgment, regard shall without to the decision questions of court were in the discretion which of the to technical or ex- errors,

below defects ceptions rights do not affect the substantial parties.” people think it of I do not intention (the portion adopting § VII, in Art. involved thereof here), give than reaffirm and constitutional do other long statutory had sanction to what been the law supra. my opinion, In the con- this state: OES 138.230, provision condi- stitutional has reference same tions mentioned the statute: matters of discretion part errors, trial court, defects, technical exceptions. or instant The error case was neither judicial involving exercise of technical nor a matter discretion.

Although § 3, of Art. VII, the construction ques here, is not involved there is involved whole being by the clause thereof now tion of is intended what majority. I fact, In of that cannot used view my opportunity expressing view overlook this own question Art. of what is intended that the whole proper § occa re-examined should be VII, Hoag Washington-Oregon my opinion, In v. sion. gives

Corp., P an errone 574, 147 756, P 588, 144 75 Or provision interpretation constitutional to this ous adopted by people inter in 1910. I believe the true dissenting opinions pretation found in to be George of former Justices that case Burnett H. people of this I not think T. Harris. do Lawrence law, in actions at court should that this state intended directly re-try, either ever criminal, civil and both jury. presented indirectly, The first sen to a facts right. expressly § us that denies Art. VII, tence of being particular, the use that is I recoil from In involving § in cases VII, 3, Art. made of has been any person. liberty of life or cause judgment and the reversed should be a new trial. for remanded

60& Rehearing On Petition for Harry Hoy, argued for the cause Oceanlake, G. appellant. him B. Richard With on the brief was Newport. Anderson, of Special Deputy Attor- T. District Hollen,

William ney, Newport, argued respondent. the cause for With Attorney him Y. Thornton, on the brief Robert were Oregon, District Attor- Foster, General Walter W. Deputy ney, Special Dis- T. R. Adams, Dallas, Attorney, trict Taft.

PER CURIAM. judgment affirming opinion

The former is adhered to. conviction former dissent. Justice Rossman adheres to his former dissent. Justice adheres Tooze from notes also read The court following: jury grand session, ‘‘ you proceeded to cash check ‘And Question: currency kept in the safe?’—Answer: my period account.’— of time it for a ‘Well, Question: put you it and cashed words, ‘In other ‘Yes, your personal account?’—Answer: you begin ‘Then right, with.’—Question: that’s currency put in that You later it? later transferred

Notes

in Portland.” The notes mine testimony as : follows that you agreement did make that “Question: ‘Who with?’— mine in Port- ‘Well, “Answer: friend land.’—” recalled that defendant on June 8, 1951, It told will concerning purchase available Board, items “by disabled veterans other individuals.” He also testified that he wrote to General Services Administration, District, official of the Water “thinks” he “about four times since about 1951.” He Washington, D. C., “and it was referred to the wrote ** they Question: office “Don’t have Seattle “Yes.” Question: an office Portland?” Answer: you ever office?” “Did contact Portland Answer: “No.” thought depend ques- has been to on This case Naylor January of the return on tion question get is, first where did 1954. The Cahill give Naylor? no cash to There is answer offered judicial not inconsistent with the admission deposited in his account and that he with piecemeal. proof converted it Cahill testi- deposition that he Baxter that he had on told fied Naylor. you Question: funds over to “did turned the you given Mr. at time that had Baxter state Naylor Jack a certified check for $750.00?” Answer: “I did not.” Baxter testified that Cahill him told given Naylor he had a check. concerning Commissioner Baxter testified a meet- ing and conversation with Cahill, as follows: * * * thought “A. I I would like to talle to regarding him the up matter and I called him phone him and asked him if I could see for a few minutes, he said, Yes, come on I over; so went I over, and said, You did not answer the you regarding letter that the board sent the cor- respondence in the and he file, said, Well, it made

Case Details

Case Name: State of Oregon v. Cahill

Court Name: Oregon Supreme Court

Date Published: Jun 13, 1956

Citation: 293 P.2d 169

Court Abbreviation: Or.