Garner v. State

• Decision Date: 20 March 1934
• Docket Number: 8 Div. 742.
• Citation: 158 So. 543,26 Ala.App. 246
• Parties: GARNER v. STATE.
• Court: Alabama Court of Appeals

158 So. 543

26 Ala.App. 246

GARNER v. STATE.

8 Div. 742.

Court of Appeals of Alabama

March 20, 1934

Rehearing Denied Oct. 30, 1934.

Appeal from Circuit Court, Lauderdale County; J. Fred Johnson, Jr. Judge.

Bayless B. Garner was convicted of embezzlement (Code, § 3961), and he appeals.

Affirmed.

Certiorari denied by Supreme Court in Garner v. State, 158 So 546.

Bradshaw & Barnett and Almon & Almon, all of Florence, for appellant.

Thos E. Knight, Jr., Atty. Gen., and Thos. Seay Lawson, Asst. Atty. Gen., for the State.

SAMFORD Judge.

This is a statutory offense created by the Code of 1923. The indictment follows the statute and charges every material ingredient of the offense. Under our decisions the indictment is sufficient and not subject to any ground of demurrer assigned. Smith v. State (Ala. App.) 157 So. 872; State v. Dodd, 17 Ala. App. 20, 81 So. 356; Morris v. State, 18 Ala. App. 456, 93 So. 61; Masters v. State, 18 Ala. App. 614, 94 So. 249; Stein v. State, 37 Ala. 123.

The defendant objected and excepted to the introduction of several ordinances of the city of Florence declaring and confirming the election of defendant as a commissioner of said city, assigning as grounds that no proper predicate had been proven. We are not called upon to pass upon this question as the defendant testifying as a witness confirmed the facts shown by the ordinances.

It appears from the bill of exceptions that on the trial of this case, the court, over proper objections and exceptions, permitted one Baylor, an expert accountant, to testify as to his examination of and calculations made from certain books, records, papers, and entries asserted by him to be the books of the city of Florence. The legality of this testimony was challenged on the ground that no proper foundation for same had been shown, in the absence of which the testimony would be hearsay and inadmissible. In Kersh v. State (Ala. App.) 153 So. 284, where the books of the city covered a period of nine years, several different departments and accounts, thousands of items showing the financial dealings of the city; all of the books being in evidence and each item identified either by the witness or some other witness with a knowledge of the facts to which they testified, this court said: "An accountant who has examined certain books and schedules which have been introduced in evidence may state the results of his computations therefrom." In the Kersh Case, supra, we also noted the rule as laid down in Sovereign Camp, W. O. W. v. Hoomes, 219 Ala. 560, 122 So. 686: "In the cases where it is impracticable or impossible for the court to make an examination of a large number of instruments, entries, or records, a competent witness may make such examination and present his conclusions thereon to the court."

For such testimony to be free from legal objection and exception, however, it must be made to clearly appear that the books, papers, etc., the subject of examination by the expert, were themselves in evidence and identified, or if too voluminous to bring into court, that they were identified at the place where kept and accessible to both parties. Hogoboom v. State, 120 Neb. 525, 234 N.W. 422, 79 A. L. R. 1171-1176.

The basis of the testimony of the witness Baylor was what he termed a report made by him of an audit of the books of the city of Florence. This testimony was hearsay and inadmissible, and the rulings of the court on the admission of this testimony were erroneous. Rouw v. Arts, 174 Ark. 79, 294 S.W. 993, 52 A. L. R. 1263, and authorities, supra.

To state the rule as we find it: Where the records, books, and papers are in evidence and identified or where such records, books, and papers on account of voluminousness, bulk, or other reason, cannot be brought into court, but are within the jurisdiction of the court and accessible to both parties, the examination and calculations made by an expert accountant based upon such records, books, and papers are the shorthand rendition of facts. When the records, books, and papers are not in evidence and are not equally accessible to both parties, the report or testimony of the accountant is hearsay and inadmissible.

The court, therefore, committed error in its various rulings on the admission of the testimony on this point. But, these errors were cured by the defendant who, while testifying as a witness in his own behalf, admitted every item of shortage, as had been testified to by Baylor, the expert accountant. These items consisted of payments of $175 per month as salary and checks aggregating $3,265, paid to defendant out of the funds of the city, which he claimed was for extra work performed by him for the city outside of his regular work as a commissioner, to which office he was duly elected and qualified.

In offering testimony the defendant contended that, as to the $3,265, such money was paid to him by the city for extra services rendered by him to the city, under a contract of employment by the city commission, of which he was a member, and that the court erred in excluding testimony on this point and in charging the jury as follows:

"The Law says that the commission is charged with the safe-keeping of the money, the City Commission runs the City and they are charged with the safe-keeping of the City's money and all that was said as to the law charges the City

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