27 S.D. 24 | S.D. | 1911
At the January, 1910, term of the circuit court of Day county, the defendant was tried and convicted of embezzlement and sentenced to the penitentiary at Sioux Falls for a term of one year. From this judgment and an order overruling a motion for a new trial, defendant appeals.
On the trial, the state offered in evidence certain exhibits numbered from 1 to 11, inclusive.
Exhibit 1 shows as follows: “Pierre, South Dakota, Nov. 16, 1908. The State of South Dakota, Dr., to Day County. To Telephone Tax 1907. Apportionment — 1908. $435.72. Received of’ the State Auditor warrant No. 1,755 for $435-72 in full payment of the within account. E. E- Butler, Treasurer of Day Co., S. D., by A. G. Paulson, Deputy.”
Exhibit 4: “No. 1,755. State of South Dakota, Auditor’s Office, Nov. 16, 1908. Treasurer of South Dakota, Pierre:, Pay to the order of Treasurer Day Co. four hundred thirty-five and 72-100 dollars, from the Apportionment 1907 Telephone Tax Fund. $435.72. John Hirning, Auditor, by H. Hedger, Deputy.”*26 On 'the back thereof appeared the following: “R. R. Butler, County Treasurer, by A. G. Paulson, Deputy.”
Exhibit 2 shows as follows: “Pierre, South Dakota, Nov. 16, 1908. The State of South Dakota, Dr., to Day County. To Telegraph Tax 1907. Apportionment — 1908. $122.49. Received of State Auditor warrant No. 1,704, for $122.49, in full payment of the within account. R. R. Butler, Treasurer of Day Co., S. D., by A. G. Paulson, Deputy. No. 16, 1908. $122.49.”
Exhibit 3: “No. 1,704. State of South Dakota, Auditor’s Office. Pierre, Nov. 16, 1908. Treasurer of South Dakota: Pay to the order of treasurer of Day Co. one hundred twenty-two and 49-100 dollars from the Apportionment 1907 Telegraph Tax Fund. John Hirning, Auditor.” Upon'the face thereof appeared the following stamp: “C. H. Cassill. Redeemed Nov. 24, 1908. State Treasurer.” Upon the back thereof appeared the following: “R. R. Butler, County Treasurer, by A. G. Paulson, Deputy.”
Exhibit 5 is as follows: “Treasury Department, State of South Dakota. No. 1,363. Pierre, So. Dak., Nov. 24, 1908. Pay to the order of Treasurer Day Co., Webster, S. D., five hundred fifty-eight 21-100 dollars $558.21. Sioux Falls Saving Bank, Sioux Fall's, South Dakota. C. H. Cassill, Treasurer of South Dakota. Ezra Issenhuth, Deputy.”
These exhibits were identified by the proper officers.
A. T. Cooper, sworn in behalf of the state, testified: “1 am cashier of the Farmers & Merchants’ National Bank. Exhibit 5 passed through that bank. It was deposited to the credit of R. R. Butler, county treasurer of Day county, and was entered on our books January 2, 1909. This check was duly paid; It was the check drawn by the treasurer of South Dakota, and R. R. Butler, county treasurer of Day county, got full credit for this $558.21 on the books of the Farmers & Merchants’ National Bank. This was deposited to his credit.” The indorsements on Exhibits 3 and 4 were shown to be in the handwriting of the defendant.
J. R. Wingfield swore on behalf -of the state: “I am deputy public examiner. I made an examination of the county treasurer’s office of Day county from the 27th to the 31st of August.
We are not prepared to hold, and do not hold, that the questions asked the witness Wingfield relating to items actually shown by the county records, as distinguished from matters involving extended examinations and the results of computation's or to prove the absence of specific items therefrom were competent. But, even in cases where examinations and computations may be shown, the rules of evidence require the records themselves to be offered in connection therewith. If we understand the proceedings in the case before us, the records themselves do not appear to have been offered. From the evidence which is undisputed, and admitted to be true by the respondent, it appears that on the 2d day of January, 1909, appellant, as deputy county treasurer of Day county, deposited in the Farmers’ & Merchants’ National Bank the sum of $8,927.23, and that this deposit included the check, Exhibit No. 5, for $558.21, issued by the state treasurer to cover the aggregate amount of the telephone and telegraph tax apportioned to Day county. Exhibit 10 offered in evidence by the state is a financial statement of the treasurer’s office at the close of business, January 5, 1909. This statement certified to by the defendant, Paulson, on the 6th day of January, 1909, shows a total amount of $49,896.46 then in the hands of the county treasurer. Exhibit 11 is the receipt of H. W. Wayland, the incoming county treasurer, acknowledging the receipt of $49,896.46 from L. L. Butler, the outgoing county treasurer. As shown by the financial statement above referred to, the aggregate amount turned
It is contended by counsel for respondent that the words in the information, “the same being the amount apportioned and paid to the county treasurer's office of said Day county for and on account of said county’s part of the state telephone and telegraph tax for the year 1907,” may be construed as surplusage, and that the information should be held to charge an embezzlement of “an
Upon this record we have no hesitation whatever in holding that the evidence is wholly insufficient to sustain a conviction, and that the order and judgment of the trial court must be reversed, and it is so ordered.