Ireland v. State

• Decision Date: 17 April 1911
• Citation: 136 S.W. 947,99 Ark. 32
• Parties: IRELAND v. STATE
• Court: Arkansas Supreme Court

136 S.W. 947

99 Ark. 32

IRELAND v. STATE

Supreme Court of Arkansas

April 17, 1911

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal from Arkansas Circuit Court; Eugene Lankford, Judge reversed.

STATEMENT BY THE COURT.

The appellant was indicted by the grand jury of Arkansas County and was tried and convicted; the indictment (formal parts omitted) being as follows:

"1. The grand jury of Arkansas County, in the name and by the authority of the State of Arkansas, accuse Joseph Ireland of the crime of embezzlement, committed as follows, to-wit: The said Joseph Ireland, in the county arid State aforesaid, on the first day of June, A. D. 1908, then and there being the duly elected treasurer of Arkansas County, Arkansas, and having taken the oath of office as such county treasurer as required by law by virtue of said office aforesaid, did have in his possession a large sum of money, to-wit, $ 149,446.49 of gold, silver and United States currency a more particular description of said money to the grand jury unknown and of the value of one hundred forty-nine thousand four hundred forty-six and 49/100 dollars, and said money being the property of Arkansas County, Arkansas, and while he, the said Joseph Ireland, was acting as such treasurer aforesaid, and having in his possession such money and public funds as aforesaid, by virtue of his said office, did then and there with the felonious intent to cheat and defraud the said Arkansas County, unlawfully, feloniously and fraudulently embezzle and convert to his own use and benefit the sum of tour thousand nine hundred and forty-eight and 44/100 dollars, against the peace and dignity of the State of Arkansas.

"2. The grand jury aforesaid in the name and by the authority aforesaid on their oaths do further present the said Joseph Ireland aforesaid on the first day of June, 1908, being then and there the duly elected county treasurer and having taken the oath of office as such county treasurer as required by law, and being then and there by virtue of his said office a receiver of public funds and money due the said Arkansas County, and having in his possession a large sum of money, to-wit, the sum of one hundred forty-nine thousand and four hundred forty-six and 49/100 dollars, being the personal property of Arkansas County, Arkansas, said money consisting of gold, silver and United States currency, a more particular description to the grand jury unknown, and of the value of $ 149,446.49, said money then and there being public funds of the county of Arkansas, and State of Arkansas, and the said Joseph Ireland on the 18th day of July, 1908, having resigned as such county treasurer aforesaid, and his successor in office having been duly appointed and taken his oath of office as county treasurer of Arkansas County, and filed his bond as treasurer aforesaid, which said bond was approved by the county court, and the said county court having made a settlement of the account of the said Joseph Ireland, county treasurer aforesaid, and having on the 23d day of July, 1908, made an order directing him, the said Joseph Ireland, to pay to his successor in office the sum of $ 5,681.59, the money found due on his settlement aforesaid, he, the said Joseph Ireland, with the felonious intent to cheat and defraud the said Arkansas County, and the citizens thereof, did then and there fail and omit to pay over to his successor in office the money and funds aforesaid, but then and there feloniously and fraudulently did convert the same to his own use and benefit. The offenses numbered one and two of this indictment being the same, against the peace and dignity of the State of Arkansas."

The appellant demurred to the indictment on the following grounds:

First. It is uncertain in the offense charged.

Second. It attempts to charge two offenses.

Third. It does not state facts sufficient to constitute a public offense.

Fourth. It does not describe the property embezzled, nor identify said property, nor allege its ownership.

The demurrer was overruled, and appellant saved his exceptions.

The testimony tended to show that Joseph Ireland was first elected treasurer of Arkansas County in 1904, and after taking the office gave his predecessor a receipt for $ 46,941.92, and that he filed no settlement with the county during said term of office nor at the expiration thereof. That he was re-elected and took the oath and filed his bond November 1, 1906. That the county court made a settlement of his accounts in July, 1908, and the entire record thereof was introduced and read to the jury by the clerk of the county over appellant's objections.

The first order, after specifying the amounts due the different funds and the total amount due the county, concluded: "Whereupon the court called upon the county treasurer to produce all of said funds in order that the court might make actual count of same, which the said treasurer failed and refused to do, stating that he needed time."

The record recited that certain county warrants were tendered for credit on the amount found due by him by the settlement on July 6th and credited same, leaving a balance due the county of $ 7,595.91. The final order of July 30th recited the presentation by J. M. Ireland of two receipts from his successor in office, E. B. Gibson, and the deduction of the amount thereof from the last balance, leaving the balance due the county at this time of $ 5,681.89 and concluded: "Wherefore the court finds that the said J. M. Ireland, as former treasurer, is indebted to the county in the sum of $ 5,681.89, and that he is short in the funds belonging to the county in the said sum of $ 5,681.89, he having failed and refused to produce said sum and to turn same over to his successor in office, and the new treasurer, E. B. Gibson, is hereby directed to collect said sum of $ 5,681.89 from the said defaulting treasurer, J. M. Ireland, and his bondsmen."

Witness then testified that E. B. Gibson took the oath as county treasurer, and read Gibson's bond as such.

C. M. Morgan, the circuit clerk, stated that no appeal was ever taken from the county court's order directing him to pay over to his successor the amount due the county.

Further evidence tended to show that he failed to pay over to his successor, E. B. Gibson, of the amount found due by the settlement, $ 4,423.20. That he had $ 2,900 on deposit to his credit in the Bank of Humphrey, which was lost by its failure; that he resigned his office and turned all his property over to his bonds-men. He carried an account as treasurer in each of the eight or nine banks of the county except one. All the revenue of the county paid him by the collector was paid by checks on banks, and be gave his two checks of a thousand dollars each on this Bank of Humphrey, one in June, 1908, after both he and Ireland had talked with the assistant cashier and been told that the bank was in good condition--better than it had ever been.

A committee investigated his books and accounts at the instance of the county judge, and his bondsmen and its members said: "He helped as much as he could, and seemed to want to discover the truth." "We saw no evidence in his books or papers or vouchers of an attempt to conceal the true state of affairs." Only the account of one bank was investigated by the committee, the failed Bank of Humphrey, and the checks of all the others were checked over to about November 1st, when the committee ceased its investigations, not being able to determine what certain checks were for. They amounted to over six thousand dollars, and were drawn to his own order, and "we couldn't find what they were for, except he stated they were to pay court expenses. It was along in November, about the time of circuit court, and he represented it was to pay jurors and witnesses that he would go to the bank and get the money to cash their certificates," as stated by Mr. Morgan, circuit clerk and member of the committee. He said further: "I see by this report that $ 6,314.15 were drawn by him, it states, for his private use. They were drawn in his favor, but a number of them were for court expenses. Quite a number of the checks were drawn in favor of J. M. Ireland, and signed 'J. M. Ireland, Co. Treasurer.' We tried to trace back and find out for what purpose they were paid, but couldn't do it." C. T. Frick, cashier of the Home Bank of DeWitt, with which Ireland did most of his business as treasurer, was also on the committee, and said: "All the funds he deposited there have been fully accounted for to him or his successor. I don't know whether money was paid out on checks drawn to his individual favor or not. Sometimes he would take credit to his individual account."

J. H. Carnes, a bondsman, testified: "I had a conversation with the defendant day before yesterday in DeWitt as follows: He said: 'Hop, I expect you hold a grudge against me.' And I says: 'Well, not so much, Joe,' and he says: 'I am just as innocent about this money as you are,' and he says: 'I can put my fingers on two men right here in DeWitt that got it, but my hands are tied.'"

W. R. Garrison testified: "Am on Ireland's bond. About a year ago, when he was drinking, the defendant said to me, 'I went into that office, not knowing the court house ring, and they were the ones that got the money.' And day before yesterday he said to me, he could lay his hands on the money, but his hands were tied. Hop Carnes was there. Defendant didn't say he knew two men who had it, he said he knew where the money went."

J. W Ireland testified that he made no settlement of his accounts during his first term, not knowing the law and not being required by the county judge, when he went for instructions, to make a settlement. "The sums I received as...