State v. Findley

• Decision Date: 16 June 1890
• Citation: 14 S.W. 185,101 Mo. 217
• Parties: STATE v. FINDLEY.
• Court: Missouri Supreme Court

14 S.W. 185

101 Mo. 217

STATE v. FINDLEY.

Supreme Court of Missouri.

June 16, 1890.

CRIMINAL LAW — EVIDENCE — PUBLIC OFFICERS.

1. Where, on prosecution of a county collector for embezzlement, it is shown that defendant never made a settlement, and that his books, when taken from him by the sheriff, showed a deficit, which he attempted to account for by swearing that the money was destroyed when his house was burned, the evidence is sufficient to sustain a conviction.

2. When it is shown that defendant received the tax-books, and acted as collector, it is not necessary to produce his commission.

3. When defendant was de facto collector, it is no defense that he failed to take the oath of office.

4. Evidence by an expert of the result of his examination of defendant's books and papers, which are in evidence, is competent to show the standing of the accounts.

5. It is immaterial whether defendant conceived the design of converting the money at the time he collected it or subsequently.

6. That the tax-books were not duly authenticated by the official seal of the county clerk when delivered to defendant constitutes no defense.

7. An exception to the remarks of the court in the hearing of the jury, which does not show in what connection they were made, will not be regarded when the remarks themselves do not appear prejudicial to defendant.

Appeal from circuit court, Howell county; J. F. HALE, Judge.

Olden & Green, for appellant. Atty. Gen. Wood, for the State.

BLACK, J.

The indictment in this case is based upon section 1326, Rev. St. 1879. The substance of the charge is that defendant, on the 15th 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 $7,000, 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 (1) want of evidence to support the verdict; (2) introduction of improper evidence; (3) improper remarks by the court and of counsel assisting the prosecuting attorney; and (4) 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. C. 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 Van Wormer were appointed to make settlement. I told him what it was, and he said `that 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 Van Wormer made the settlement, and did not 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 $7,000. The witness then gives the amount collected and paid over to the treasurer, and the amount collected and not paid over, aggregating $19,419.50. The state called the treasurer, who testified to payments made to him by defendant aggregating over $26,000. The witness Smith, being recalled, stated that the settlement spoken of by him did not include the delinquent lists; that all he and Van Wormer knew about taxes having been paid was from finding the mark "paid" opposite the names of the tax-payers; that these marks were made by defendant or his deputies. The tax-books of 1884, and the defendant's bank-account, were put in evidence. The defendant, testifying in his own behalf, stated that his dwelling-house was destroyed by fire in December, 1884, or 1st January, 1885. He says: "At the time it was burned I had in it $1,400 of registered warrants taken as taxes by me. I had others, which had been not been listed, amounting to $1,300 or $1,400. I had in the house over $300 in school warrants; I had about $6,600 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 $300 or $400 made out for citizens and tax-payers, 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 $3,000 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 $300, and also evidence to the effect that all county warrants issued in 1884 had been paid.

1. 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 $7,000. It is true this fact is testified to alone by the expert witness Smith, who examined the books...