Kersh v. State, 6 Div. 318.

• Decision Date: 12 September 1933
• Docket Number: 6 Div. 318.
• Citation: 26 Ala.App. 15,153 So. 284
• Parties: KERSH v. STATE.
• Court: Alabama Court of Appeals

153 So. 284

26 Ala.App. 15

KERSH v. STATE.

6 Div. 318.

Court of Appeals of Alabama

September 12, 1933

Rehearing Denied Nov. 7, 1933.

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Glenn Kersh was convicted of embezzlement, and he appeals.

Affirmed.

Certiorari denied by Supreme Court in Kersh v. State (6 Div 490) 153 So. 287.

Crampton Harris, of Birmingham, and Foster, Rice & Foster and J. M Ward, all of Tuscaloosa, for appellant.

Thos. E. Knight, Jr., Atty. Gen., and Edward de Graffenreid, of Tuscaloosa, Solicitor for the State.

SAMFORD, Judge.

The defendant was clerk of the city of Tuscaloosa from 1922 until his resignation from the office in March, 1931. During that period it was his duty to keep the books of the municipality and to collect and turn over to the treasurer all moneys due the city from taxes and other sources. During the period of his incumbency in office, this defendant received many thousands of dollars due the city from taxpayers and others; the various transactions constituting several thousand items of debit and credit. After the defendant was out of office, his books and accounts were audited by several competent accountants, viz., Jamison, Solomon, Scrivens and Knight. This audit covered and included all of the books kept and used by defendant in the conduct of his office as city clerk of the city of Tuscaloosa, except Receipt Book, Serial No. 2400, which could not be found.

The result of this audit disclosed an aggregate deficit of some $16,000, and there was evidence tending to prove, or facts from which inferences might be drawn, that the money represented by this ascertained deficit had been fraudulently taken by this defendant and converted to his own use.

The record in the case is very voluminous consisting of more than 400 pages of transcript and filled with copies of books, papers, deposit slips, together with the oral testimony of numerous witnesses to which hundreds of objections and exceptions have been noted. To analyze and comment upon the particular evidences tending to connect this defendant with the crime charged or to pass upon, seriatim, the exceptions reserved, would entail a labor and an opinion so extended as would not be justified on this appeal. And so we are content to follow the suggestions found in brief of appellant's counsel and confine our opinion to the points discussed in appellant's brief, except as it will otherwise appear in this opinion.

We shall first say, however, that the cause was laboriously and carefully tried, with rulings clearly and fairly made, presenting for review all of the material questions in the case and in none of these rulings do we find error to the prejudice of defendant's cause.

Taking the evidence as a whole, we are clear to the conclusion that there was sufficient evidence as to every material element of the offense charged and of defendant's guilty agency within three years before the finding of the indictment to justify a verdict of guilt, and therefore the several written charges requesting an instruction of acquittal were properly refused.

The main insistence of appellant is that the court erred in permitting the witness Jamison to testify as to conclusions arrived at by him through calculations made from the books kept by defendant when he had not examined those books item by item, but in some instances had taken totals made by other auditors in reconciling balances. An accountant who has examined certain books and schedules which have been introduced in evidence may state the results of his computations therefrom. Brown v. U.S. (C. C. A.) 142 F. 1; Crawford v. Roney, 126 Ga. 763, 55 S.E. 499. In this state the rule is stated to be: "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." Sov. Camp, W. O. W., v. Hoomes, 219 Ala. 560, 122 So. 686, 692.

There could hardly be found a better illustration of the necessity for the rule than in the present case. 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 these books were in evidence and each item identified either by the witness Jamison or some other witness with a knowledge of the facts to which they testified. The testimony of Jamison was based upon facts within his knowledge as having been ascertained from the books of the city, the bank deposits, or receipts given to individuals. The examination of the witness Jamison was well within the rule above quoted and in the various rulings of the court on this point we find no reversible error. The cases of Bauer v. State (Ala. App.) 146 So. 539, and Edwards v. State, 22 Ala. App. 34, 111 So. 765, in no way conflict with the decision here.

The testimony of the witness Solomon comes under the rule as above stated. Solomon was a certified public...