Abernathy v. State

• Decision Date: 21 March 1940
• Docket Number: A-9513.
• Citation: 101 P.2d 634,69 Okla.Crim. 142
• Parties: ABERNATHY v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

101 P.2d 634

69 Okla.Crim. 142

ABERNATHY v. STATE.

No. A-9513.

Court of Criminal Appeals of Oklahoma

March 21, 1940

Syllabus by the Court.

1. Embezzlement is defined by Oklahoma Statutes, 1931, Section 2037, 21 Okl.St.Ann. § 1451, as follows:

"Embezzlement is the fraudulent appropriation of property by a person to whom it has been entrusted."

2. Oklahoma Statutes, 1931, Section 2495, 21 Okl.St.Ann. § 341 is a special embezzlement statute, directed specially against any public officer of the state or any county, city, town, or member or officer of the legislature and every deputy and clerk of any such officer.

3. Under the above statute, the inference that one has embezzled property by fraudulently converting it to his own use may be drawn from the fact that he has not paid the money in due course to the owner, or from the fact that he has not accounted for the money which he received. This is especially true where public officials have failed to turn over to the proper authorities public funds which they have collected by reason of their official position.

4. Instructions examined and found to have properly presented the law as applied to the facts.

5. The fact that the evidence revealed loose bookkeeping, errors and oversights by the defendant does not justify an instruction that by reason thereof there would not be an "embezzled shortage", and that defendant should be discharged.

Appeal from District Court, Oklahoma County; Ben Arnold, Judge.

E. E Abernathy was convicted of embezzlement and he appeals.

Affirmed.

Dudley, Hyde, Duvall & Dudley and Jack Fariss, all of Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Lewis R. Morris, Co. Atty., and John F. Eberle, Asst. Co. Atty., both of Oklahoma City, for the State.

BAREFOOT Judge.

Defendant, E. E. Abernathy, was charged by information filed in the District Court of Oklahoma County, with the crime of embezzlement; was tried, convicted, and sentenced to pay a fine of $1, and serve a term of three years in the penitentiary, and has appealed.

For reversal of this case it is contended:

"First: The evidence as a whole fails to show the defendant guilty beyond a reasonable doubt, and the verdict of the jury, and the judgment and sentence entered thereon, is not supported by the evidence but is contrary thereto."

"Second: The trial court erred in giving Instruction No. 6, and in refusing to give the defendant's Requested Instruction No. 1."

On the 7th day of January, 1929, Stanley Rogers became Sheriff of Oklahoma County. On January 20th, 1930, the defendant, E. E. Abernathy, was commissioned as deputy, and continued to act as such until February 1, 1935, a little more than five years. Defendant had formerly had three years and ten months experience in the Tax Department of the County Treasurer's Office of Oklahoma County. At the time he was appointed deputy sheriff he was placed in charge of the collection of delinquent personal taxes and sales taxes. While he performed other duties as a deputy this was his principal business and took the greater part of his time.

During the year of 1935 it was claimed that there was a shortage in the accounts handled by the defendant, and during the year 1935 and a part of 1936, an audit of the Sheriff's Office of Oklahoma County, including the Delinquent Personal Tax Department, which was in charge of defendant, was audited by an auditor from the office of the State Examiner and Inspector, and on August 26th, 1936, a duplicate of said audit was filed in the office of the County Clerk of Oklahoma County.

This audit covered four separate periods. The first period from January 7, 1929, to January 3, 1931; the second period from January 3, 1931, to January 2, 1933; the third from January 2, 1933, to January 6, 1935; and the fourth from January 6, 1935, to January 12, 1936.

This audit, which was introduced in evidence, revealed a shortage in the Delinquent Personal Tax Department during the time that defendant had charge thereof of $1,983.76. On December 10th, 1936, an information was filed against defendant charging him with the embezzlement of this amount.

The record in this case contains over seven hundred pages. Elaborate briefs have been filed by both the state and counsel for defendant. We have carefully read the record and the briefs and the cases therein cited. It would unduly lengthen this opinion to give a detailed statement of all the evidence.

It is the contention of the state that the evidence justified the jury in finding that defendant embezzled the amount above set forth, and appropriated it to his own use. The defendant contends that even though there was a shortage, as revealed by the report of the auditor, that he did not take or embezzle the same, and did not, at any time, appropriate any of said funds to his own personal use and benefit. That others besides himself had access to the funds and that he did not appropriate any of said funds to his own use and benefit.

The undisputed evidence leaves no doubt that defendant had complete charge of the collection of delinquent personal tax warrants sent to the sheriff's office by the County Treasurer, and also the collection of delinquent sales taxes sent to the office by the Oklahoma Tax Commission. The evidence also reveals that other deputies at times assisted him and especially when he was not in the office at the time parties came to pay their delinquent taxes, but he was the one who had charge of the books and the money collected, and made the reports and deposits, as his duty required.

The method adopted for the collection of these delinquent tax warrants was simple, and if carried out in a lawful manner there was no chance or reason for a mistake or mishandling of the funds to be made. If any error was committed the defendant, under the system adopted, should have known it at once, and could have corrected it forthwith and made the error known to his superior officer, the Sheriff of Oklahoma County.

The method adopted for the collection of these taxes was as follows: When a taxpayer failed to pay his personal taxes a tax warrant was issued by the County Treasurer. These warrants were then sent to the Sheriff, in book form, and it was the duty of the defendant, who was in charge of this department, to correctly enter these warrants on a warrant register. He then sent notice through the mail to the tax payer notifying him that his taxes were delinquent. If the tax payer came into the office and paid his taxes he was given a receipt. If he mailed in his payment the receipt was mailed to him. When the personal tax receipt was returned a duplicate was made which was retained in the sheriff's office. At the end of each day the total of the money and checks on hand should equal the total of the personal tax receipts written. At the end of the day it was the duty of the party in charge, the defendant in this case, to take the total of the money and checks on hand and list them on a deposit ticket. When the deposit ticket was totaled it would be equal to the total of all the receipts written for that day and would check with the total amount of money being deposited.

As a further check the number of the tax warrant paid was put on the receipt and when the deposit was made up the tax warrant number was also shown on the deposit slip. After this deposit slip was made up it was then the duty of the defendant to take it, together with a pass book, and the checks and money, to the office of the County Treasurer where it was then deposited to the credit of the "Sheriff's Depository Fund", the County Treasurer being the sheriff's banker. At the end of each month the sheriff's office wrote a voucher (check) on the depository fund paying to the County Treasurer the total amount received for that month for delinquent personal taxes. At the time of the issuance of the voucher the original personal tax warrants were pulled from the books and placed with the voucher. The voucher was then taken to the County Treasurer, the taxes of the tax payer were paid, and the County Treasurer issued his official receipt for each of the tax warrants paid.

The defendant testified that this was the system to be followed. That he had had three years and ten months of experience in the handling of taxes in the County Treasurer's Office. If the system as above outlined had been followed by the defendant there would have been no chance of a shortage in his account. If any of the other persons had collected money and failed to put it in the box or desk where he put the funds he would have known it at the end of the day. Not only the witnesses for the state testified that he at no time made complaint to them of any shortage in his account, but the defendant also testified that he never at any time made complaint to any of his companions or to his superior officer, the Sheriff of Oklahoma County. Defendant and others testified that at times personal checks were cashed from the funds which he had. If the checks were there this would not have caused a shortage even though this was a bad practice. The defendant was the one in charge of the funds. It was his duty, under his oath as an officer of the state, to protect the funds entrusted to his care and keeping. If others were permitted to have access to the money which was entrusted to him, it was his duty to be just that much more careful, to the end that the proper amount was on hand when he made his daily report and checked his accounts for the day.

The reading of this record reveals that it abounds with instances where defendant failed to properly handle the funds which came into his care and keeping. Instances where he collected delinquent taxes, some in cash, and some by check, and no receipt was...