Bartley v. State

• Decision Date: 09 June 1898
• Docket Number: 9347
• Citation: 75 N.W. 832,55 Neb. 294
• Parties: JOSEPH S. BARTLEY v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

75 N.W. 832

55 Neb. 294

JOSEPH S. BARTLEY v. STATE OF NEBRASKA

No. 9347

Supreme Court of Nebraska

June 9, 1898

REHEARING of case reported in 53 Neb. 310. Former decision sustained.

REAFFIRMED.

Charles O. Whedon and T. J. Mahoney, for plaintiff in error.

C. J Smyth, Attorney General, and Ed P. Smith, Deputy Attorney General, for the state.

OPINION

HARRISON, C. J.

Proceedings in error were brought to this court on behalf of Joseph S Bartley from the judgment and sentence of the district court of Douglas county in an action in which he was charged and, on trial, convicted of the embezzlement of a sum of money, the property of the state. A hearing in this court resulted in an affirmance of the judgment and sentence. The opinion in which were embodied the arguments and conclusions on the different subjects of the litigation as then presented was filed January 3 of the current year, and reported in 53 Neb. 310 at 310-364, 73 N.W. 744. Subsequently a motion for a rehearing was filed and granted, and the cause has been again argued and submitted for decision.

We will not make any further statement of the case, or the facts and circumstances thereof, but refer the reader to the former opinion for such statement. It was a subject of complaint in the brief filed on rehearing that sufficient time had not been devoted to the examination of the record and the preparation of an opinion. It is true, as stated in the brief, that the record is quite large--contains 1,200 pages--and that extended and elaborate briefs were filed; but it must here be borne in mind that the argument in such briefs and orally--considerable more than the usual time was allowed for the latter--were of great and material assistance in the consideration and decision of the points of complaint which were discussed. Moreover, and finally, it is not a question of the number of hours, days, or weeks consumed or to be taken in the examination and adjudication of a cause, but of such a due consideration of the litigated matters, without reference to the time employed, as will result in a proper and just disposition of them and render true right to the litigants.

It is stated in the brief: "Expressions are used in the opinion, perhaps inadvertently, which find no support in the record, and to which the assent of silence ought not to be accorded. It is said, in the opinion, that there is no controversy as to the facts; that the defendant on the 10th day of April, 1895, made out in his own name, and presented to the auditor of public accounts, a voucher for the sum appropriated to replenish the state sinking fund, and caused the auditor to issue on that date a warrant, which was delivered to defendant on the day it bears date, and he at once registered it in the proper book in his office, but omitted to enter upon the book in the proper column the name of the person presenting the warrant for payment; that almost immediately thereafter defendant indorsed his name upon the back of the warrant and placed the same in the hands of the Omaha National Bank, or its president, for negotiation, and the latter, as agent for the defendant, sold the warrant to the Chemical National Bank for the face value." It is asserted in this connection that, of many of these acts and things, while it appeared from the evidence that they were done or existed as facts, it was not shown that they were personal acts of the plaintiff in error or made under or by his personal supervision or direction; or of some, of which the time might incidentally or directly be of the controversies, that it was not of the testimony that they occurred of times assumed in the statement in the opinion to which the brief referred. In regard to the matters done in the state treasurer's office, it may be said that some were by deputies or clerks in the performance of their duties in the business of the office and sanctioned by the treasurer, some by his signature, and some of which there were such attendant facts and circumstances as to raise a presumption of the treasurer's knowledge. It may be truthfully observed of the several matters that the evidence of them was of a nature to warrant the broad and comprehensive assertion relative to them employed in the opinion.

It is again urged with much strength and force of argument that there was no evidence to warrant or uphold the verdict of conviction, particularly in that it was not shown that any money, in the strict sense of the term, or cash--actual dollars and cents in specie--was tangibly employed or involved in the transaction which it was and is charged constituted the crime--the embezzlement of the funds of the state. That ninety per cent of the business affairs of the country which involve the payment or transfers of money are conducted successfully and satisfactorily without the exchange of dollars and cents in specie, and yet every one concerned receives and employs his money, is asserted in articles on financial questions and heard in discussions and conversations of business men, and it is no doubt approximately true. The law, conservative as it is, and rightly so, still must and does, where and when administered or interpreted and applied in the true spirit, and there is no direct statutory provision which must be legislated from its position as an obstruction, keeps, it is true, a somewhat tardy pace with the progress in business or other matters and meets and becomes accordant, or adapts itself in its rules and doctrines to the multifarious changes and conditions which are evolved from the affairs of men. This it does, and yet is stable, settled, firm, and certain. That all men in the ordinary business transactions of life might, may, and do, through the usual media and channels, transfer money, have it, use it, and enjoy it (which cannot be gainsaid), and that a treasurer, when he makes use of the same means, did not receive the money, that it was not transferred, when, at the same time, it appears, without controversy, that his purposes were served, that he had the money and used it to as full an extent as if he had passed it in kind through his fingers, is an anomalous position and one not within good reason and modern usages, conditions, or beliefs. The several acts and matters elemental, directly...