101 Mo. 217 | Mo. | 1890
The indictment in this case is based upon section 1326, Revised Statutes, 1879. The substance of the charge is that defendant on the fifteenth of January, 1884, being then the duly elected and qualified collector of Howell county, and having in his charge public moneys which he had received and collected by virtue of his office to the amount of seven thousand dollars, embezzled and converted the said moneys to his own use. The trial resulted in a verdict of guilty, with a sentence of five years’ imprisonment.
The errors assigned are, First, want of evidence to support the verdict; second, introduction of improper evidence ; third, improper remarks by the court and of counsel assisting the prosecuting attorney ; and, fourth, giving and refusing to give instructions.
The evidence is, in substance, as follows : "
Henry Dryer : “I was one of the county judges of Howell county in 1884 and 1885 ; the defendant was collector of that county in 1884 ; he went out of office March 1, 1885, and was succeeded by W. 0. Gum. The defendant never did make any settlement, and the sheriff was appointed to take the books from- him. He said, if we would give him further time so that he could get his money out of those tax receipts he had given out and never received the money on, he could make settlement; this was in April, 1885. After this Smith and Yan Wormer were appointed to make settlement. I told him what it was, and he said ‘ that it was too much,’ that he could beat that count; this was the last of May, 1885.”
Smith testified that defendant was not present at the time he and Yan Wormer made the settlement, and did hot co-operate with them; that at one time he brought some books, but was not present more than an hour during the three days and .nights they were making the settlement; that they found a deficit of over
The defendant, testifying in his own behalf, stated that his dwelling house was destroyed by fire in December, 1884, or first of January, 1885. He says : “At the time it was burned I had in it fourteen hundred dollars of registered warrants taken as taxes by me. I had others which had not been listed amounting to thirteen hundred or fourteen hundred dollars. I had in the house over three hundred dollars in school warrants. I had about sixteen hundred dollars’ worth of tax receipts which had been made out for the parties who owed the tax, and the tax book had been marked paid when, in fact, I had not received, one cent of the money. I had in my safe three hundred or four hundred dollars, made out for citizens and taxpayers, which had been made out, the books marked paid, and the parties had not then and have not yet paid any of it, and I have here with me those receipts. I also had in my house as much as three thousand dollars, money, which I had collected belonging to the county. All of the county warrants, the school warrants and the money and the unpaid tax receipts I had were destroyed by the burning of my house.”
The state then offered evidence to the effect that defendant said to different persons he lost about three
If the evidence for the state was competent and properly received, then the state made out a case. The proof is positive that defendant was in default nearly seven thousand dollars. It is true this fact is testified to alone by the expert witness Smith, who examined the books with Yan Wormer. But he got his information for the basis of the calculation from the taxes marked “paid” on the tax books. These books were thus marked by defendant and his deputies, and the books were original and the very best of evidence against the defendant. A point is made on the fact that the. treasurer’s books show payments made by the collector in excess of the amount which Smith' says defendant collected ; but Smith is speaking only of the tax books of 1884, and it appears that the prior delinquent tax lists were also in the hands of the defendant. Smith’s evidence is clear that there was a deficit of nearly seven thousand dollars on the taxes of 1884. But this is not all. The clear admission of the defendant is, that he had in his hands money of the county to the amount of three thousand dollars. It is by the loss of this money in the conflagration of his dwelling and the loss of warrants and tax receipts that he attempts to account for something over seven thousand dollars. His statements to others tend to show that the loss of money by the fire did not exceed three hundred dollars. There is good ground for believing that the alleged loss by fire was a pure fabrication contrived and sworn to by the defendant to cover up his well-known defalcation.
2. It was not necessary to produce the defendant’s commission to show that he was collector. The fact that he received the tax books as collector and proceeded to perform the duties of collector was evidence of his official character. Whart. Crim. Ev. [.9 Ed.]
Nor is it any defense in this case that the defendant failed to take the oath of office or give bond for the performance of his duties. Being an officer defacto he cannot object that he is not an officer de jure. 1 Bishop on Grim. Law [ 6 Ed.] sec. 464 ; State v. Dierberger, 90 Mo. 371. It was not, therefore, incumbent upon the state to show that defendant took the oath of office or gave an approved bond, and defendant’s tenth instruction was properly refused.
3. It appears the expert witness Smith was, with Van Wormer, engaged three days and nights in the examination of the tax books, receipt stubs and other papers. These books and papers were present on the-trial and the books were in evidence. The witness was allowed to give the result of his examination,' and there was no error in this ruling. It was but giving the result of a mass of books and papers too voluminous to be conveniently examined in court, and in such cases it is competent for the witness to speak as to the result of the accounts. Masonic Mut. Benefit Society v. Lack-land., 97 Mo. 138 ; 1 Greenleaf ’ s Ev., sec. 93; Wharton’s Crim. Ev. [ 9 Ed.] sec. 166.
4. The defendant’s ninth refused instruction asserts the proposition that to authorize a conviction the jury must find that the defendant received the money with the intent, at the time of receiving the same, to convert and appropriate it to his own use. This instruction was properl y refused. It is wholly immaterial whether the defendant formed the intent to convert the money to his own use at or after he collected the same. The eleventh refused instruction contains the proposition that to convict it must appear that the tax books of 1884 were duly authenticated by the
5. The attorney for the defendant, in making an objection to parol evidence that defendant performed the duties of collector, suggested that if defendant was charged with murder it would be necessary to show that some one had been killed ; and thereupon the court said, in the hearing of the jury, “this crime does not lie around like a dead man.” During the .cross-examination of the defendant he said : “I said when talking to my friends about the burning, that I was ruined.” Then follows this statement in the bill of exceptions : “ At this juncture the court, in ruling on the defendant’s answers to questions propounded by the attorneys for the state, remarked, in the presence of the jury, ‘that the defendant’s memory does not seem to be very good about the county warrants he had at the time of the burning,’ to whieh remarks by the court the defendant objected and excepted at the time.”
As to the remark of the judge concerning the memory of the defendant, it does not appear in what connection it was made. The questions propounded by the prosecuting attorney are not preserved, nor are the ■rulings of the court. There is nothing to show that this remark was intended to be or could have been a reflection upon the evidence of the witness. Trial courts should abstain from comments upon the evidence, but there is nothing in any of these rémarks of the judge which could have in the least prejudiced the defendant.
6. Mr. Skinner had been called as a witness by the state, but on the objection of the defendant his evidence was excluded. On the argument of the. cause an
No specific objection is made to any of the instructions given by the court. They are full and fair. The defendant has violated a plain statute by converting to his own use public moneys, and he must suffer the consequences. The judgment is affirmed.