Heilman v. State
| Decision Date | 19 July 1922 |
| Docket Number | 22137 |
| Citation | 189 N.W. 303,109 Neb. 15 |
| Parties | JEREMIAH L. HEILMAN v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Thomas county: BAYARD H. PAINE JUDGE. Affirmed.
AFFIRMED.
Lincoln Frost, N. T. Gadd, J. H. Evans and J. W. Kinsinger, for plaintiff in error.
Clarence A. Davis, Attorney General, and W. A. Prince, contra.
Heard before MORRISSEY, C. J., LETTON, ROSE, DEAN, ALDRICH, DAY and FLANSBURG, JJ.
In the district court for Thomas county Jeremiah L. Heilman, defendant, was convicted of embezzling, as county treasurer, $ 9,000 of county funds. For that offense he was sentenced to pay a fine in double the amount of the embezzlement and to serve in the penitentiary a term not less than 1 year nor more than 21 years--statutory penalties. Rev. St. 1913, sec. 8654. As plaintiff in error defendant has brought the record of his conviction here for review.
The principal grounds urged for a reversal are insufficiency of the evidence to sustain the verdict of guilty to the extent of $ 9,000 and errors in rulings on evidence. The evidence is conclusive that defendant converted to his own use at various times county funds in different amounts. He used some of the county money in his hands as if it belonged to himself individually. Proof of these facts is not only undisputed, but items temporarily converted by defendant to his own use, aggregating $ 5,800, are conceded by him in his own testimony. Notwithstanding conclusive evidence of embezzlement to the extent of $ 5,800, defendant insists that he restored this money to the treasury and that the jury would not have found him guilty except for inadmissible evidence of an expert accountant who was erroneously permitted to testify, without a proper foundation, to a shortage of $ 11,372.59. In making allowances for errors and doubtful items in the computation of the expert, the jury seem to have deducted $ 2,372.59 from his estimated net shortage and found the amount of the embezzlement to be $ 9,000.
Under the statute defining embezzlement by a public officer, the return of the $ 5,800 feloniously converted by defendant to his own use is no defense. Rev. St. 1913, sec. 8654. The permanent return of the entire sum is doubtful, but in any event the felony was complete to that extent before there was any attempt on the part of defendant to put back what had been unlawfully taken. The restoration was undertaken after an examiner from the department of trade and commerce had discovered and exposed a shortage. There is no presumption that the jury would not have found defendant guilty to the extent of $ 5,800 on proved and conceded facts, except for proofs of a greater shortage.
To sustain a conviction the state was not required to prove the embezzlement of the exact amount charged. The amount embezzled may be determined by adding felonious conversions at different...
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