Cumbest v. State

Decision Date16 May 1984
Docket NumberNo. 53799,53799
Citation456 So.2d 209
PartiesLum CUMBEST v. STATE of Mississippi.
CourtMississippi Supreme Court

Frank J. Hammond, Jr., Moss Point, William Liston, Liston, Gibson & Lancaster, Winona, for appellant.

Bill Allain, Atty. Gen. by Marvin L. White, Jr., Special Asst. Atty. Gen., Jackson, for appellee.

En Banc.

HAWKINS, Justice, for the Court:

Lum Cumbest and Dale Coleman were convicted in the Circuit Court of Jackson County of perpetrating a fraud upon Jackson County in violation of Miss. Code Ann. Sec. 97-11-31 and each sentenced to a term of four (4) years in the Department of Corrections, with three (3) years suspended.

Cumbest was supervisor of District Number One, and Coleman was a road foreman of that district.

Coleman did not prosecute an appeal to this Court. Cumbest did.

There are numerous errors assigned, which we will cover in this opinion. We affirm.

FACTS

Miss. Code Ann. Sec. 65-7-95 is one of the statutes governing expenditures of county funds. Originally enacted as Chapter 156, Laws of 1928, it provides the method whereby boards of supervisors construct, repair and maintain county roads and bridges. The statute first provides that the board may purchase equipment and materials and employ labor for such purposes under the direction of a competent road commissioner. The statute then provides that if, in the opinion of the board, any part of the work necessary can best be done by awarding contracts therefore, the board may do so.

By Chapter 260, Laws of 1962, the act was supplemented by a legislative recognition By Chapter 513, Laws of 1964, Miss. Code Ann. Sec. 31-7-101 et seq., the Legislature required county boards of supervisors to establish a central purchase system for equipment, supplies, and services necessary for the maintenance, repair and construction of county roads and bridges. This system requires a county purchase clerk responsible for the purchase of such equipment, supplies, and services from the successful bidders or other vendors legally authorized to make such sales.

that county boards upon occasion rented heavy equipment for work on roads. The 1962 amendment specifically provides that before any board of supervisors may rent heavy road machinery or equipment, it must first adopt an order adjudicating the necessity for such rental, the purposes for which it is to be used, the type of machinery or equipment, and the reasons why the rental will promote the public interest of the county. There is then a requirement that the order direct the clerk to advertise for bids and provision is made for awarding the contract to the lowest responsible bidder.

Under the statutory procedure, a member of the board or duly authorized employee prepares a requisition in triplicate for the product or services needed. Upon receipt of the requisition, the purchase clerk issues a purchase order in quadruplicate for the product. One copy of the purchase order is retained by the purchase clerk, one copy is delivered to the board, the original and one copy of the purchase order is delivered to the vendor.

Upon submitting his claim for payment to the county, the vendor is required to submit one copy of the purchase order with his invoice.

Receiving reports are also prescribed so that an accurate inventory may be maintained. The State Department of Audit is required to design forms to be used under the system. See Miss. Code Ann. Sec. 31-7-101 through 115.

Miss. Code Ann. Sec. 65-7-95 contemplates a definite decision, before any equipment is rented, of why the equipment needs to be rented by the county, to what use it shall be put, and why the public interest is promoted by renting. This advance decision of the board is evidenced by order spread on the minutes.

Likewise, Miss. Code Ann. Sec. 31-7-103 contemplates a requisition and purchase order before any product is purchased. These statutes, applicable only for expenditures for county roads and bridges, are given for a basic understanding of the facts of this case. There are other laws governing expenditures of county funds which will be discussed in the opinion.

While the time of initiation is not shown in the record, there was in effect in Jackson County in 1976 a practice of renting heavy equipment (road graders, bulldozers, draglines, backhoes) by a member of the board simply calling and securing the services from one of the county bidders for such services. At the end of the month the supplier would invoice these supervisors' district for the number of hours each piece of equipment was used, the hourly rate, and the charge therefore.

No prior board orders, as required by Miss. Code Ann. Sec. 65-7-95, were ever entered on the minutes of the board showing the necessity for such rental, the purposes to be used, or the promotion of the public interest by such rental.

Jackson County adopted the central purchase system required by statute and this procedure was in effect in 1976.

HOW CUMBEST, VAUGHAN, AND COLEMAN OPERATED

One of the individuals who rented equipment to the county was Hal G. Vaughan (Vaughan), under the business name of H & O Materials and Equipment Rentals (H & O). He did not merely rent machines, each piece of equipment rented included an operator as part of the charge. Each month Vaughan would contact Cumbest and determine whether his charges were satisfactory, and also how Cumbest wanted him to charge the county.

Following the discussion between the two, Vaughan would prepare an invoice on an H & O letterhead.

Vaughan would then deliver the H & O invoice to the purchase clerk, after which the purchase clerk notified Coleman to come to his office. Coleman would go to the office of the purchase clerk, and sign a prepared requisition based on the invoice. 1 The purchase clerk would then prepare and sign a purchase order, and Coleman would sign a prepare requisition report. The invoice and three documents usually bore the same date.

The H & O invoices would sometimes state certain roads in the county upon which the equipment was used, but just as often they would simply state, "Rental of equipment under supervision of County Road Foreman." Coleman was a county road foreman for District 1. Each invoice would then specify the various pieces of equipment used, including the serial numbers. There would then follow a total of the hours each piece of equipment had been used that month, the hourly rate and the amount charged for the particular piece of equipment for the month. The invoice then totalled the amount due for all rental charges. There was no itemization showing date of use, or specific place of use on any date, or hours of use on any specific date. 2

A series of over forty invoices and claims beginning in April, 1976, and ending in September, 1979, revealed monthly rental charges of a charge rate minimum of $500.00 to a maximum in excess of $18,000.00. These invoices to District 1 for this period of time exceed $240,000.00, of which virtually the entire amount was for rental of equipment. 3

COLEMAN AND THE TRACTOR

In 1974 District 1 began operating a public park consisting of approximately 33 acres, named East Central Park. In 1976 clearing was started on a 97-acre tract for a public golf course, also in District 1, which opened in 1978 and was named Jackson County Public Golf Course.

In 1976 Coleman was the owner of a small tractor and bushhog. According to Coleman, he told Cumbest he would like the job of cutting the grass in the park, and about a week later, Cumbest told him to talk to Vaughan about doing the work, since Vaughan had a contract with the county for cutting grass. 4 When he talked with Vaughan, Coleman told Vaughan he would do the work for $7.50 per hour. Following this, each month Coleman would give H & O a handwritten ticket stating a certain number of hours, "bushhog work," the charge, and signed "Dale Coleman." The tickets were also dated.

According to Vaughan, Cumbest contacted him in 1976:

A I rent draglines, bulldozers, loader graders, backhoes, front end loaders, dump trucks, asphalt distributors, rollers, bushhogs, lowboys.

* * *

A Yes, sir. I don't remember the exact date and time of it. But Mr. Cumbest called me in reference to handling a bushhog. Mr. Coleman owned a tractor and a bushhog and was doing work for the County, but he couldn't bill it to the County because he didn't have a bid with them. And Mr. Cumbest said he would like for me to handle it because I did have a bid with the County and could Q What words did Mr. Cumbest use as best you can remember about how you were going to handle it?

legally run it through my books and handle it for him.

A Well, Mr. Coleman would just turn in his bill to me for his work and I would take my bid price on that particular piece of equipment and invoice the County for it, and when I got paid I would turn around and pay Mr. Coleman.

Q What was the agreement, Mr. Vaughan, concerning billing with the County? What was your agreement with Mr. Cumbest?

A Well, really wasn't any agreement; I mean just he had asked me if I would be willing to do that, and I told him I would be glad to do it. And I was, because I was doing quite a bit of other work for the County anyway. I would just call up every month whatever Mr. Coleman turned in and get it approved by Mr. Cumbest.

Q By every month; from 1976 through '79--is that what you are talking about?

A I do every month. If I do any work for a Supervisor, at the end of the month when it is time to turn the bills in I call him up and talk to him and ask him how he wants it invoiced; what he wants it charged to. I tell him how much was charged and what they were and everything, so he is aware of what it is. And then he tells me what to charge it to and how to handle it.

Q For instance, in the case of Dale Coleman's bushhog and tractor, tell us how that worked in the years 1976 through '79? Each month how did that work?

A Well, Mr. Coleman gave me the bill. I would take the...

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