94 Vt. 423 | Vt. | 1920
The indictment contains seven counts, each of which charges the respondent with a violation of G. L. 7104, which provides: “A state, county, town, village, fire district or school district officer who wilfully neglects to perform the duties imposed upon him by law, either express or implied, shall be imprisoned”, etc., by wilfully neglecting to perform the duties imposed upon him as bank commissioner by G. L. 568, 569. The former section provides: ‘ ‘ Said commissioner shall annually examine the books and papers of the auditor of accounts”, and the latter provides: “Such commissioner shall biennially report to the General Assembly the result of his examination * * * of the books and papers of the auditor of accounts”, etc.
The first count charges that the respondent wilfully neglected to examine the books and papers of the auditor of accounts for the fiscal year ending June 30, 1916; the second count charges that he wilfully neglected to report to the General Assembly of 1917 the result of his examination of the books and papers of the auditor of accounts for the biennial period ending June 30, 1916; the third charges that he wilfully neglected to report to the General Assembly, at its biennial session in 1917, the fact, then well known to him, that the auditor of accounts had withdrawn from the state treasury, contrary to law, by the use of fraudulent and unlawful orders drawn upon the State treasury, by himself, as such auditor, and payable to himself,
Horace F. Graham was auditor of accounts from October, 1902, to January, 1917. The respondent was bank commissioner from January, 1909, to January, 1919. During the latter period the- books and papers of the auditor of accounts which showed his transactions as such were a daybook and a loose-leaf distribution ledger, both books of original entry, the orders drawn by him upon the State treasury, department vouchers, so-called, and itemized vouchers. The department vouchers were personal receipts given by State officials for orders given them by the auditor, to cover expenditures thereafter to be made and services thereafter to be performed. Such officials were supposed to furnish the auditor, later, with itemized vouchers showing what the money had been actually used for.
The distribution ledger was made up from data contained in the vouchers, and showed the number of each order, its date, amount, to whom drawn, and for what purpose. The purpose was stated in a general way, when department vouchers were taken, but when itemized vouchers were furnished, whether at the time the order was drawn or later, the items were classified as salary, postage, telegrams, clerk hire, etc., and so entered in the ledger. The daybook contained the same information, except the classification of the items appearing in the vouchers.
Exceptions numbered 1, 2, 3, 4, 9, 10, 11, and 15, in the respondent’s brief raise practically the same questions, and therefore are considered together. They relate to the admission in evidence of the books and papers in the office of the auditor of
Unless proper cross-examination, it was not error to • exclude this evidence, at that time. The respondent now insists, however, that it was proper cross-examination; but the record fails to disclose anything, to justify this claim. It was clearly new matter, not growing out of the direct examination, and properly excluded.
These copies were part of the Vermont Public Documents (G. L. 7488, 7507), and were required by law to be furnished to certain named officials and to the “members of the General Assembly during the session when such reports were made.” G. L. 7511. We think that they were admissible. In Watkins v. Holman, 16 Peters 25, 10 L. ed. 873, it was held that a volume of state papers showing the report of certain commissioners under an act of Congress confirming the title in question, was admissible in evidence. It was. put on the same ground as journals of Congress and of state Legislatures, and reports sanctioned and published by authority.
As to the volume then in question, the Court said: “Now' this original report, duly authenticated by the Treasury Department, to which it was made, would be'evidence, and it is evidence in the published volume. The very highest authenticity attaches to these state papers published under the sanction of Congress.” This case was cited and followed in Fulham v. Howe, 60 Vt. 351, 14 Atl. 652. See, too, Worcester v. Northborough, 140 Mass. 397, 5 N. E. 270.
The offence charged in each of these counts is a wilful neglect to report to the General Assembly, in 1917, the fact, then known to the respondent, that the auditor of accounts had received a large amount of money from the State treasury, which he had not accounted for, as appeared from the books and papers in his office; or, in other words, a wilful neglect'by the respondent to report to the General Assembly, in 1917, the result of' his examination of the books and papers of the auditor of accounts. The allegations as to how Graham obtained such money were not necessary to charge the offence for which the respondent is indicted, nor are they descriptive of it; therefore, it is immaterial that the orders mentioned in such counts are described as “fraudulent and unlawful”.
We think that the allegations respecting the orders, in these counts, were surplusage, and that it was not necessary to prove that any particular order was fraudulent and unlawful. The motion was properly denied.
The answers referred to show that this characterization was not wholly unjustified. The respondent cannot complain of remarks elicited by his own conduct. Under the circumstances error does not appear.
He had testified in direct examination that when he completed'his examination September 7 all of the orders drawn to the auditor prior to June 30, 1916, as he understood it, had itemized vouchers, except $2,659.93 “that he (the auditor) had drawn for the expenses of the office for the following months”; that he knew, substantially, what the expenses of the auditor’s office were, and believed that the amount in the hands of the auditor, unvouehed for, was not in -excess of what would be required to pay such expenses, and made his report to the General Assembly, in 1917, on that basis. The material part of such report was: “I have checked up the vouchers in the auditor’s office, and proved the trial balance for each year, and found them correct.” We think that in view of his direct examination it was competent fpr the State to show that at the time he completed his examination the auditor had drawn other
The witness Pratt was recalled, after the above occurred, and, subject to like exception, was permitted to testify that the books in the auditor’s office showed that Graham drew to himself three orders in July, three in August, and one in September, 1916, before the date when the respondent completed his examination, aggregating $2,900. This evidence was admissible for the reasons above stated.
That the auditor, in those reports, characterized the money furnished to the heads of different departments as “advancements” was immaterial. There was no question, so far as the evidence was concerned, about what was done in that respect, and it was of no consequence what any one called it.
The testimony of the respondent, which it was claimed this evidence tended to corroborate, was undisputed, and was so treated by the court in its charge, as will appear later.
At the close of the State’s evidence, the respondent moved that he be discharged on the first count, because the evidence
While there was evidence tending to show that he did make an examination in 1916, the State’s evidence tended to show that the books and papers in the office of the auditor disclosed a large shortage in the account of that officer, extending over the entire time that the respondent was bank commissioner, which could have been readily discovered by an examination conducted with ordinary care and diligence, and that such condition was not reported by the respondent to the General Assembly of 1917. This clearly made a case for' the jury on the question of whether an examination was in fact made, at least, such an examination as the statute requires.
It is true, as claimed by the respondent, that some of the State’s evidence tended to show that he made a report to the General Assembly in 1917. But something more was required
The evidence tending to establish the material allegations in the remaining counts is too voluminous to permit a reference to any considerable part of it. According to the testimony of the respondent he learned, soon after his talk with Joslyn, in 1913, the condition of Graham’s account down to that time, and knew its condition thereafter down to June 30, 1916. Pratt, the expert accountant, testified that June 30, 1913, Graham had in his hands, unvouched for, according to the books and files in his office, $12,291.58, and that this amount was increased to $14,042.33, June 30, 1916. It further appeared that the respondent did not make any report to the General Assembly of 1914, the session following his examination in 1913, and that in 1917, he made the report above quoted. We think these circumstances, alone, sufficient to meet the question raised by the motion, except the one that no particular order was shown to be fraudulent, or that the respondent was shown to have knowledge of such order, which we have seen was not necessary, and clearly made a case for the jury.
It is the established rule of this Court that it will not, even in criminal cases,' consider questions not raised in the court below. State v. Monte, supra.