Baker v. State
| Decision Date | 20 November 1924 |
| Docket Number | 24051 |
| Citation | 200 N.W. 876,112 Neb. 654 |
| Parties | ELMER C. BAKER v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Lincoln county: J. LEONARD TEWELL JUDGE. Affirmed.
AFFIRMED.
Beeler Crosby & Baskins, for plaintiff in error.
O. S Spillman, Attorney General, and Harry Silverman, contra.
Heard before MORRISSEY, C. J., LETTON, ROSE, DEAN, DAY, GOOD and THOMPSON, JJ.
An indictment was returned in Lincoln county wherein Elmer C. Baker, defendant, was charged with embezzling, and converting to his own use, $ 9,853.80, the property of Lincoln county, while he was the duly appointed, qualified and acting deputy county treasurer. The jury returned a verdict of guilty and fixed the amount of the embezzlement at $ 4,000. Thereupon defendant was sentenced to serve a term in the penitentiary of not less than three nor more than ten years and in addition thereto a fine was assessed against him in the sum of $ 8,000 under a statute which requires that, where a jury finds a defendant guilty of embezzling public money, in addition to the sentence, he shall be fined by the court in double the sum of the embezzlement as found by the jury. Comp. St. 1922, sec. 9634. Defendant, alleging error, has brought the record here to have it reviewed.
H. E. Crandall is a county treasurer examiner. Sometime in April, 1923, he went to North Platte to check the county treasurer's office. From his evidence it appears that Mr. Souder, the county treasurer, was not in the office when he first called, and that the defendant, "Mr. Baker, was then in charge," and that he immediately began his examination, but did not see Mr. Souder until "just before closing time that day." He found three certificates of deposit issued by the "Bank of Lincoln County at Hershey," in the sum of $ 5,000 each, which "ran to S. M. Souder, treasurer," and he "accepted them as part of the cash." It was subsequently disclosed, however, that the county treasurer had no authority to negotiate for the certificates of deposit in question.
Mr. Larsen is an accountant. With his assistants he made an investigation of the condition of the county treasurer's office. He arrived at North Platte to begin work sometime in the last week of April and began his investigation the first week in May, 1923. On the evening of his arrival, or in the nighttime, a fire was discovered in the courthouse by which it was so greatly damaged that it could no longer be used by the county. The search for such records as would assist in the investigation of the county treasurer's office was begun the third day after the fire. Some of the records of this office were found in piles on the floor of the district courtroom, "pretty closely together" and not "over three or four feet apart," in that part of the courtroom which some witnesses designated as "the oil spot," a place where some sort of oil had apparently been applied to the documents which were discovered on the floor. The charred fragments of the three $ 5,000 certificates of deposit, referred to by witness Crandall, were identified and are in the record. It may be noted that the county treasurer's office was located on the first floor of the courthouse, but the district courtroom, where the data of the county treasurer's office were found, was located on the second floor.
All of the data above referred to, which included more than 30 of defendant's salary checks, in sums ranging from $ 83 to $ 150 each, with his signature indorsed thereon, and which were cashed by him, and over 400 exhibits, called "I O U" slips, and marked "I O U Receipts of E. C. Baker," with his signature thereon, and also certain verifying slips of adding machine tape, are in evidence. The "I O U receipts designated sums of money, varying from $ 3 to $ 100 each, and this money the state contends was taken, from time to time, from the money drawer by defendant. Some of the checks and "I O U" receipt exhibits, in evidence, were blackened and charred to some extent by the fire and some were apparently so thoroughly soaked with oil that it became necessary to run them through a wringer to extract the oil. These checks and "I O U" exhibits for the most part were found in the so-called "oil spot" upstairs in the district courtroom. A few exhibits more damaged than the rest, it was found necessary, for the purpose of the trial, to preserve in envelopes which are attached to the record. But, for the most part, the exhibits are plainly decipherable. Defendant's salary checks bore the name of S. M. Souder over the printed designation "County Treasurer," and below that designation, with one exception, appeared the letter "B" just in front and to the left of the printed designation "Deputy." It appears that on these exhibits the name of "S. M. Souder" was written by defendant, and the letter "B" to designate himself, with the one exception noted above, was written in by defendant below the treasurer's name and opposite the printed designation "Deputy" which appeared in the check. Defendant testified that these salary checks were written by authority of the county treasurer.
In his own behalf defendant testified that his employment in the county treasurer's office began in the early part of 1919 and continued while Mr. Souder was county treasurer; that at first his salary was $ 1,000 a year and later was raised to $ 105 a month, and subsequently, and for a greater part of the time, it was $ 150 a month; that for about three years of his employment he knew the combination of the safe in the treasurer's office; that it was with Mr. Souder's consent that he secured advancements on his salary by taking cash from the money drawer and placing an "I O U" slip therein showing the amount so taken; that such "I O U" slips were carried in the drawer as cash until the end of the month, when the remainder of his salary was taken from the drawer, in cash, and the "I O U" slips were thrown into the back part of the drawer in a separate compartment, and that, as at times happened, "when he made money outside, he would sometimes put the cash in the drawer and take up the slips and throw the slips in the back part of the drawer." Mr. Baker denied that he ever at any time removed any of the "I O U" slips which represented the advancements taken from the cash drawer without replacing the cash item and that he did not know "what finally became of those accumulating receipts and slips and matters of that kind."
The contention of the state is that, after deducting defendant's salary for the period of his employment from the amount of money that came into his possession during the same period, the remaining amount, as shown by the state's evidence and the exhibits, was over $ 4,000, that being the amount embezzled as found by the jury. But defendant in his brief says: "It is impossible in any way to handle the evidence in this case to make up the sum of $ 4,000." True, the indictment charged defendant with the embezzlement of $ 9,853.80, and it is also true that the record does not show why the jury brought in a verdict against defendant in the sum of $ 4,000 when the evidence would have supported a verdict for a larger sum. Nor is there now, in the present state of the record, any way by which this inscrutable fact may be found out from the record before us. But it is sufficient if the evidence supports the verdict. And while the discrepancy is trifling in amount, nevertheless it is favorable to defendant. To be sure, in the absence of confession, it is to be expected that the evidence will conflict. However, the issues involved questions of fact and, notwithstanding an able defense, it appears that the jury rejected the evidence of defendant and, except as to a trifling sum, they accepted as true the evidence of the state, and on this point it supports the verdict.
Counsel contend that the conviction of defendant cannot stand in any event because, as argued, he was not a deputy county treasurer de jure, or de facto, until January 3, 1923, when he filed a bond and took an oath, and that not until then did he become a deputy county treasurer. Counsel also contend that, even if defendant was a regularly appointed and qualified deputy county treasurer, during all of the period involved in this action, or if he was a de jure or de facto deputy county treasurer during this period, he did not come within the language or the meaning of section 9634, Comp. St. 1922, under which the indictment was drawn, in that he was not, as argued in the brief, "a public officer or other person charged by law with the collection, receipt, safe keeping, transfer or disbursement of public moneys." Section 9634, so far as applicable here, reads:
" If any officer or other person charged with the collection, receipt, safe-keeping, transfer or disbursement of the public money or any part thereof, belonging to the state or to any county or precinct, organized city or village or school district in this state, shall convert to his own use * * * any portion of the public money * * * received, controlled or held by him for safe-keeping, transfer or disbursement, * * * every such act shall be deemed and held in law to be an embezzlement of so much of the said moneys or other property as aforesaid, as shall be thus converted, * * * which is hereby declared to be a high crime, and such officer or person or persons shall be imprisoned in the penitentiary not less than one year nor more than twenty-one years, according to the magnitude of the embezzlement, and also pay a fine equal to double the amount of money or other property so embezzled as aforesaid."
In the use of the word deputy it will be presumed that the legislature used it in its ordinary and legal sense. 1 Bouvier's...
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