60 Iowa 478 | Iowa | 1883
I. The defendant was Treasurer of Webster county for ten years, commencing in January, 1868, and ending in January, 1878. In April, 1878, the indictment in this case was returned against him, in which he was charged with embezzling about -$48,000 of the public money which came into his hands as such treasurer.
The State introduced in evidence the settlement sheet
We do not understand that the defendant contended upon the trial that he was not short in his cash, and largely in arrears, when he went out of office in January, 1878. But he sought to show that this shortage occured during his prior terms, more than three years before the indictment was found, and that, therefore, the prosecution was barred by the statute of limitations. To make this proof, the defendant offered evidence to the effect that, at the settlement made in J anuary, 1876, and at those previously and subsequently made, but a small amount of cash was produced at each settlement, and that the cash balance, which should have been actually in his hands in money, were largely made up of bank certificates of deposit and other vouchers. He offered to show that certificates of deposit and other evidences of debt had been made use of by him in his settlement, more than three years prior to the finding of the indictment. ITe further offered to prove that he had no funds in the banks which issued the certificates. In other words, he offered to show and prove that he made his settlement with the board of supervisors by the use of worthless and spurious certificates of deposit, instead of cash, and that whatever money was converted to his own use was so converted more than three years before the indictment was presented. This evidence was objected to by the State,
In Boone County v. Jones, 54 Iowa, 699, it was held that a county treasurer, and the sureties on his bond, were bound by a settlement and accounting made according to law, and where, at such settlement, for aught that appeared, the cash which should have been on hand was produced by the treasurer, such settlement could not be impeached by showing that the defalcation complained of previously existed. In other words, it was held that, where a treasurer produces the funds which should be is his hands, at a settlement, the settlement is conclusive, and the treasurer and his sureties cannot be permitted to prove that the treasurer deceived the board of supervisors in such settlement, by producing money not belonging to the office nor to the treasurer. That was a civil action to recover upon the bond of the treasurer for an alleged defalcation. In Webster County v. Hutchinson, 9 N. W. Rep., 901, and 12 N. W. Rep., 534
We are now required to determine whether or not the above rules, which are applicable to civil liability upon a treasurer’s bond, should be held to obtain in a criminal prosecution for embezzlement. We are clearly of the opinion that they should not. If the claim of the defendant be true, he was guilty of embezzlement as early as 1872. He offered to prove that, from that time forward, he made his settlements, not with money, but largely with certificates of deposit, and with other promises to pay. This was wholly unauthorized by law. Even if the defendant had actually deposited money with the banks, and the certificates represented the deposits, such a disposition of the funds in his hands was unauthorized, Lowry v. Polk County, 51 Iowa, 50. But when the defendant offered to prove that he had no deposits in the banks, he. in effect, offered to show that he had converted the money which had been in his hands to his own use. At least, this would have been the logical inference, in the absence of proof that he had lost it, or that it had been stolen, or „the like. The fact that at each settlement he failed to produce the money, was a sufficient failure to account for the funds in his hands, to constitute the crime of embezzlement, in the absence of exculpatory proof.
We think the defendant should have been allowed to show,, if he could, that no defalcation took place within three years next before the finding of the indictment. We know of no rule that estops a defendant in a criminal prosecution from proving the actual fact in dispute, notwithstanding any admission or confession he may have made to the contrary. Conclusive presumptions and estoppels have no place in the criminal law in establishing the body of the crime charged. The statement and certificate showing that the cash was actually on hand and-produced at the settlement in 1876, amounted to
II. There are other questions in this case which are argued by counsel. They pertain to the manner of obtaining the jury, and the empaneling the 'jury in the alleged absence of any counsel for the defendant, and other objections, which we need not discuss, inasmuch as the alleged errors will not likely arise upon a re-trial. In view of a new trial, however, it may not be improper to say that, in our opinion, the demand made by the county auditor (if a demand was necessary) for the payment of the alleged shortage, was a sufficient demand, in view of the authority given to him by the board of supervisors.
For the error first above discussed the judgment of the District Court will be
Reversed.
This case was decided, alter rehearing, June 7,1882, hut does not appear in the official Reports covering that date. It will appear in a supplement to this volume.