*1 resulted from the 1973 which would have trial injury judge’s
back The order alone.
is erroneous. appeal to the Industrial Court
On trial banc, judge
en the order compensa claim for and claimant’s
vacated was denied. This order
tion Fund Court, Industrial en erroneous.
banc, judge’s the trial have vacated should the cause determine
order and remanded disability degree
whether the caused impairment to the
the combination of ma injury
left the 1973 back leg and would
terially greater than injury from the 1973 back
have resulted 172,supra.
alone. See § vacated and remanded.
Order
All concur. the Justices Appellant, WILDS,
Alton J.
v. Oklahoma, Appellee. STATE
No. F-74-672. Appeals
Court of Criminal of Oklahoma. 14, 1976.
Jan.
Rehearing IS, Denied Feb. *2 Chew,
D. C. Thomas and Rick Oklahoma City, appellant. for Gen., Larry Derryberry, Atty. L. James Swartz, Gen., Atty. Byron Asst. L. Wil- hite, Intern, Legal appellee. for OPINION BLISS, Judge: Wilds, Appellant, hereinafter Alton J. charged, referred to as tried and in Oklahoma convicted CRF-73-3235, County, No. of the of- Case Making fense of False Entries on Ac- on Be- Relating counts to Monies Received City, City half of the of Oklahoma Okla- homa, of 21 violation O.S. § year in the (1) He was sentenced to one Penitentiary and a fine of One Hundred Dollars, timely appeal and a has ($100.00) made to Court. lengthy us record before evidences prolonged complicated nature trial, four and one- which lasted some days half with 42 and over witnesses intro- exhibits. The witnesses and exhibits generally duced the State can be divided proper parts: showing into Those two procedures of the bookkeeping and usual City of of The Oklahoma Utilities Division City, showing evidence of a sim- those plan of the offense ilar or scheme charged. only portion bookkeeping is that sur-
practices that concern this case rounding payments at the office of Hall. Service.Division Utilities procedure as Generally, is follows. Payment is made a cashier and the cus- may take given receipt, tomer written the cash- the form a ier, portion which becomes the a carbon of payment to credit the custom- used account, may or it be a stub from er’s bill, bill in which case the customer’s water At the credit the account. itself is used to Division, tally of the Utilities time, attention Service maintains the cashier same by completing corrections are made recorded. two the transaction where sheet journal entry cards, one to debit the day, tally ac- working end of At the error, sheet, portions count and another to and the credited cred- money received proper journal are two the cashier account. These bill retained *3 are entries are cross-referenced name and the cash boxes placed in a box. All account number so that in inner office of the transaction can placed in a safe an then During at be double checked. From time time Division. to the the Utilities Service department period is unable to question, in discover where an portion of the least a not of the defend- account was in office credited. In those in- safe was the this stances, proper the morning, the office account is following credited ant. The period in no is made the debit manager (the defendant for to another account. However, in it these a money the and balances cases to question) totals notation that of is made on receipts. (In the absence effect the single journal entry the against of the Utili- card. employees the other performed this func- Division ties Service charge The against defendant in this balance, the always tion.) The two almost knowingly case that he a was false a dollars being that of few only variance Warren, entry to the account of N. a J. in chargeable to errors cents, generally of Division. customer the Utilities Service a the there is change. event making that The state’s case showed Mr. Warren are ex- discrepancy, tally sheets the great check, paid $100.00, by to the Utilities to reconcile the two attempt an in amined Division, on He March Service balance, reaching a the mon- After totals. him, dupli- his a did not have bill with so the receipts delivered to of- are ey and the cate bill was made and was Mr. Warren another City where Treasurer fice receipt. given original the as his Mr. money is de- Then the made. balance deposited March draft was on Warren’s por- City’s account and the posited to the 21, 1973, by City the Treasurer’s Office. the re- the of tions the bill and carbons he Mr. testified that never noti- Warren Processing ceipts to Data forwarded are fied the Utilities Service Division give to the to credit are used where However, in his error account. March bills. paying
customers 27, 1973, single a prepared the defendant entry possible journal card which credited testimony that it was $100.00 There was explanation Mr. account. money the cash box or to Warren’s to remove from applied “payment the transaction reads: time a bill for safe and the same remove & Cash wrong account see Debit to like amount and the amounts forwarded a JE required Proper procedure To office Treasurer would balance. Stub.” to to term “see Debit in addition coincided with the that make sure the balances JE” explanation should have shown Utilities actual amount account Division, number of the necessary to name and account it would Service journal entry. This did not that tally sheets. debited check them testimo- period appear card and there was on the tally sheets for the time involved that time journal entry of no debit missing. ny are that case amount, could be debiting that period, Occasionally an error occurs making testimony was There found. bookkeeping process, payment and a having money a card without such first Generally, wrong account. credited to the constituted erroneously credited cop- error is caused numbers are when entry. false preparing a incorrectly by a du- ied cashier presented showing testimony was keypunch plicate operator bill Other occurred with identical transaction posting payments to the customer’s that the who customers to other brought errors are the accounts account. When reported errors in ther paid bills, their never testified that all the entries made accounts, him done subsequently, good without their faith. He further testified knowledge, responsibility had their accounts credit- was his their to entry carry- card make single journal these entries when errors ed with came his attention, explanation reported identical that on the whether ing an the error was by one of the Department card account of Mr. Warren. customers crediting the one clerks. It was also the testimony There was such also er- testimony of prior May, defendant that rarely rors came the attention of the 1973, it not his responsibility to bal- personnel Utilities Service Division unless ance the received with the billing the customer whose account was not cred- stubs, and that usually, after that time he error, ited called about or a customer always, but not did so. He also testified erroneously whose account credited that he was uncertain of the date of- *4 notified events had them. Neither these placed fice safe was his office, in but that in the occurred instances introduced at always it had not been there. testimony trial. There was also that these single entries could be used to insure no brings assignments Defendant four complaints by would be made customers of error. first two will be considered whose accounts were never credited. together they as are related. Defendant necessary could entries have made if alleges that the information is defective had money someone removed sum of allege showing because it fails to facts all the the from funds received Utilities offense, the material elements of and the Division and had Service also removed a that a demurrer to the evidence trial receipt used to credit the accounts. The should have been sustained for the same keep removal these two items would shortcoming. agree. We do not balance, day’s totals in but would have is charged Defendant under Section 341 meant an account would not have been particular of Title 21. This section deline- credited. theory It was the State’s that de- against ates prop- crimes and revenue had, fact, fendant in entry false erty of the State officers It thereof. up to cover his removal of funds from the reads, pertinent part: in Utilities Service Division. The State also introduced as evidence two items “Every public taken any officer of the or State from defendant’s desk after city, town, drawer his county, every . . . and resignation. These two items were any deputy or clerk of such and officer portions of the bill used credit every person custom- receiving money other any ers’ accounts were several weeks thing old. or other of value behalf of or testimony There was depart- there was no for account of this or any State for billing reason these stubs to have been government ment of the State in the desk of the defendant rather any than bureau or fund created law and forwarded to Processing. thereof, Data people which or the State directly interested, indirectly are who The defendant introduced a number of either: witnesses reputation who testified to his * * * * * * honesty. for The defendant himself took the stand and admitted journal entry keeps Knowingly any “Third: false ac- relating card to Mr. Warren’s count, account was any or makes false entry or era- in his handwriting. He stated that any occa- sure account of or relating sionally journal completed entries him, moneys so received on.behalf of just State, the manner as Mr. city, town, Warren’s when county,' district or they yet had not thereof, located people the account which or in which improperly interested; had been credited. He fur- are . . .
tion.
tion with and access
his office and his
was shown to
While
department
receipt by defendant of the monies in
In the
be deemed
n
It
.
information,
does, however,
.
n
information
via the location of
shall
guilty
have
>jc
upon
counting
of a
been received
may
conviction
n
show his connec-
felony .
money
fails to
n
awkwardly
thereof,
safe
money.
allege
.
[*]
ques-
hold that the circumstantial evidence of de-
dence, and sufficient to send the case to
the monies to the Treasurer’s
cient withstand the demurrer to the evi-
individual
a clear
fice
fendant’s
fendant also
jury.
manager
showing that the check was in
by the
responsible for the transfer
department,
supervisor,
received monies. We
and that as
and as the
office,
was suffi-
fact
de-
of-
drawn,
requirements
it does meet the
set
assignment
Defendant’s third
of er
sufficiently
in O.S.1971,
forth
It
§
ror is that the evidence
“other
crimes”
apprises
charge
the defendant of
prejudicial and should not
have been
him,
offense
also states the
During
testimony
admitted.
the trial the
charged
certainty
with such
that a convic-
of number witnesses and exhibits sup
acquittal
tion or
as a bar to
could
used
porting
testimony
their
were introduced
prosecution
further
for the same offense.
the State. These witnesses were customers
See,
State, Okl.Cr.,
Fish v.
505 P.2d
of the Utilities Service Division who had
(1973).
*5
paid their bills and had then
sub
sequent credits to their accounts of the
Defendant
finds
with the
fault
instances,
In
same amount.
three
that sur
basis,
State’s evidence at trial on the same
rounding
payment
Jacqueline
Ed
is,
prove
that
that the
failed to
that
wards,
Owens,
Linkswiler and
Mr.
Mr.
defendant
made false entries to an ac
circumstances were not the same as those
relating
by
count
to monies received
him.
alleged by the
be the common
State to
believe that the State has introduced
We
so,
by
plan.
given the admonition
Even
sufficient
evidence to show
circumstantial
and the fact that sufficient
judge
the trial
by
that
monies were received
defend
plan
as
of common
and scheme
evidence
manager
ant. He was the office
testimony,
and
shown
the other exhibits
respon
He had
Utilities Service Division.
testimony of these
the admission of the
sibility for the
and
em
cashiers
clerical
prejudicial
a
error.
is not
three individuals
ployees.
charged
He was the one
with
State,
McCluskey
that
v.
counting
balancing
and
the monies before We believe
Okl.Cr.,
controlling
(1962)
The offense of that evidence of false entries the rule its it is nature is a offenses is admissible when prove. difficult crime similar It Motive, secret, proper (1) is one committed to show material and without wit- require Intent, nesses. To of mistake or prosecution (2) (3) Absence prove person directly accident, Identity beyond (4) and doubt defend- of the ant’s actual the commission charged with draft of $100.00 Warren, put N. would an accused be an crime for which intolerable bur- J. den, plan virtually trial, one scheme impossible (5) and Common sustain instances Here, such as this commission of two embracing one. there is final has been no determination of ultimate so related to each other that
more crimes evidence, regarding fact the over- proof establish the tends to other. one motion in ruling transactions limine was not er- of the other An examination prove them ror. introduced exhibits the defendant was clearly reveals Accordingly, for the reasons above stat- sig- either his ed, linked all of them with the conviction sentence are af- nature, passage, en- the evidence firmed. officer, or as approving as dorsements BRETT, J.,P. dissents. checking the certifying and material one BUSSEY, J., concurs. of them re- This each involved. makes other and to crime lated to each BUSSEY, Judge (concurring): They sys- establish a charged. tend to I complete Judge am with accord proper for the and were tematic scheme Bliss’ interpretation which, of the statute in connection with the jury to consider substance, leg- holds that it not was in the information. charge contained require prove islative intent to the State to page 631) (at .” direct evidence case, McCluskey, a lengthy as in In this provisions charged under the of the statute jury given to the that the admonition was recited, actually physically heretofore evidence introduced was to considered present and receive either in only jury as the in its discretion found that person constructively, but that circum- upon the crime related to defend- establishing stantial evidence the defend- ant charged. jury was further charged ant’s guilt of the crime is suffi- admonished that the evidence admitted require cient. To hold otherwise and scheme, motive, for the purpose to show actually place State to the defendant at the part intent and conduct on the of the de- scene direct evidence would thwart fendant. The was also admonished legislative public intent and invite offi- charged defendant was not with cer, responsible supervision for the of a growing offense the testimony out of *6 large employees acting number of who are of these witnesses. receiving public under his direction and In view of our in Mc- holding money, employ precise plan the here to fol- Cluskey, supra, in the view of admonition lowed. given by court, the and because of the na public A officer a without staff could crime, ture of this we hold the evi certainly be convicted on circumstantial ev- tending dence to show other crimes was necessity idence the the without of and, admissible, accordingly defendant’s proving by physical direct his evidence assignment third of error is without merit. presence money when the was received or Finally, urges the public defendant city. forwarded Even offi- overruling trial court erred in his mo cer with a small staff be could convicted tion in admitting limine and in the evi under the presented. evidence here I do dence of prior other crimes judi because a not believe that the statute was intended to cial determination of punish public the issue collaterally only operate officers who estopped admission staff, very one, evidence. This without a or with a limited contention is without merit. provisions Defendant’s and violate the who of the stat- Mills, Okl.Cr., reliance on Hawk v. by making 476 P. ute false on entries small sums 2d misplaced. (1970), In that money case of received them which can be there previous proved circumstantially, impose upon determination and a jury of guilt the ultimate fact of duty prove or inno State the direct evi- cence. pointed As this Court out in Hawk, public large dence that the with a officer when an of issue ultimate fact has been staff sums large and who receives of mon- determined a valid and final judgment, ey, at present money was was time that issue litigated again. cannot be city. There or forwarded to the Such yet responsible only daily be ab- not for judicial balancing would not construction surd, receipts, although, dis- of fundamentally unfair and if he but were present, criminatory might actually and defeat he have frustrate done the and justice. balancing day. ends of The State should charged placing with the defendant at necessary Here, McCluskey, as in was work where carry he could out his normal offenses to introduce evidence other duties, 19, 1973, on either March the date their determina- jury aid the order to paid bill, N. his Warren utilities or on J. Considering the admonitions tion. 20, 1973, March moneys date the were instructions, to- trial court the concise forwarded to the treasurer of the gether overwhelming evidence with City. Oklahoma necessary it is not While any guilt, I fail to see how the defendant’s for the State to show that the any could at other fair-minded arrive actually paid in order to in the in- verdict the one rendered than complete its chain of circumstantial evi- stant case. dence, put it must him at the office before it shows receipt. even constructive On BRETT, Presiding (dissenting)-: Judge alone, that basis I would reverse and re- view, defend- my I In two of dissent. mand with instructions that unless the of error have merit assignments ant’s place State can defendant work at the be reversed accordingly, this case should question, time in dis- case should be for trial. and remanded new missed. portion of the statute under which assignment error, Defendant’s third in the convicted is set forth defendant was that admission of the evidence of “other majority opinion. I that one of would note error, crimes” has also merit. In the entry false the elements is that my colleagues, view of the admission of moneys so received "relating this evidence was not error under the rule by him.” the five subsections of the Of State, enunciated in McCluskey v. Okl.Cr. statute, only making this is the one such (1962). Assuming, arguendo, 372 P.2d presume requirement receipt. must We type that this is the of evidence contem- specific requirement as a ma- there plated McCluskey, subject it is still to a offense, terial and not as element of were, fact, showing that these offenses surplusage. Among many mere rules prohibited by and that statute every statutory construction one is that regard, by defendant. committed word, provision sentence or was intended suffers “other crimes” the evidence of purpose, for has some useful some as the State’s evidence from the same flaw force and effect and that some effect must *7 is, that the failure charge; the instant given Higgs, Parte each. Ex or on the place the defendant at work 338, 263 (1953). Okl.Cr. P.2d 752 When moneys were premises on the dates regarding all statutes embezzlement and it could be established paid. Unless examined,1 require- related crimes are least opportunity of at an defendant had forming receipt ment of stands out as receipt funds allegedly constructive part particular of crime defined entries, this evidence by these manipulated section of 21 O.S.1971§ excluded. should have been has failed make a sufficient sheer volume addition, that the I find showing that defendant reaches introduced here moneys of the evidence It was the uncon- Mr. Warren. trial, Throughout prejudicial level. testimony of tradicted the defendant that about, brandished fifty some exhibits at the time (the of Warren offense of- continuing confu- reflects the record fense for he convicted) which was he was part- corporation private seq., 1. In 21 individual O.C.1971 an § et embezzlement against nership 1451 et § in 21 O.S.1971 are treated related crimes the State are treat ; seq. ed embezzlement and related crimes part sion on the judge, trial
prosecutor, counsel, defense the clerk and reporter. unlikely It is most that the
confusion encountered officers of the days trial,
court in four and one half
when had the exhibits in hand at the
time, could jury during be cured de- Rather,
liberation. likely is more checks,
the mound of cancelled cashier’s
stubs, receipts journal piled entries be-
fore them caused the to believe that present,
where so much “evidence” was
some crime must have been committed
defendant. requirements
These on the State that it
place defendant at the scene in order to
prove its case and to introduce the evi-
dence of may other crimes be seen some However,
as mere technicalities. my
view it is not the function of the Court to portions passed
waive statutes our
legislature.
Accordingly, I would reverse and re-
mand this conviction for a new trial with
instructions that the required State be
show presence defendant’s at work on ei-
ther 20, March 19 inor the ab-
sence of proof that the charge be dis-
missed. The requirement same presence
should required before the evidence of
“other crimes” could be admitted.
Bobby Earl WINTERS, Appellant,
v.
The STATE of Oklahoma, Appellee.
No. F-75-236. Appeals
Court Criminal of Oklahoma. *8 13,
Jan. 1976.
Rehearing Denied Jan.