Mathies v. State
| Decision Date | 07 December 1934 |
| Docket Number | A-8725. |
| Parties | MATHIES v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. Record examined and evidence held sufficient to sustain the verdict of the jury.
2. Where the information charges the allowance of a fraudulent and unlawful claim, it is not a variance for the state, after it has established the allowance of the claim as charged, to prove that the pretended claimant was a fictitious person such evidence tending to support the allegations of the state that the claim was unlawful and fraudulent.
3. The order in which testimony shall be produced rests largely in the discretion of the trial court.
Appeal from District Court, LeFlore County; Enloe V. Vernor, Judge.
J. Paul Mathies was convicted of unlawfully and feloniously approving a certain unlawful, fraudulent, and unauthorized claim against the county, and he appeals.
Affirmed.
See also, 28 P.2d 594.
Babb Bennett & Babb and White & White, all of Poteau, for plaintiff in error.
J. Berry King, Atty. Gen., F. M. Dudley, Asst. Atty. Gen., and A. G. Windham, Co. Atty., of Poteau, for the State.
Plaintiff in error, hereinafter referred to as defendant, was convicted in the district court of LeFlore county of the offense of willfully, knowingly, intentionally, fraudulently, unlawfully, and feloniously approving a certain unlawful, fraudulent, and unauthorized claim against LeFlore county, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of five years.
It appears from the record that the defendant was a member of the board of county commissioners of LeFlore county from 1925 to 1932, and during four years of that time was chairman of the board; that claim No. 519 for the fiscal year 1929-1930 was prepared in the name of L. A. Harper as claimant and filed with the county clerk and duly allowed by the board of county commissioners on the recommendation of defendant, and that a warrant was issued by the clerk and delivered to defendant, payable out of the funds allotted to defendant's commission district No. 2 for road work purporting to have been performed in that district under defendant's supervision; that the claim and warrant were both missing from the files of the county clerk, together with a large number of other claims and warrants involving other alleged unlawful transactions of defendant; that the evidence of the state disclosed one hundred and forty-nine other warrants issued apparently according to the same system employed in allowance of the L. A. Harper claim, and the issuance of warrants thereon; that sixty-nine of the warrants so issued were delivered to defendant; that thirty of these claims were filed by defendant; that in sixty-eight of these cases neither the claim nor the warrant could be found, but the record indicated that the warrants had been delivered to defendant; that seventeen of the warrants introduced indicated indorsement of the payee's name by defendant; that defendant frequently requested the county clerk to leave the door unlocked between the commissioner's office and the clerk's office to make it convenient for him to work at night, and that defendant at all times had access to these purported unlawful and fraudulent records.
To sustain its allegation that the claim was fraudulent and unlawful, the state called forty witnesses residing in commissioner's district No. 2, who testified they had resided in that district from ten to thirty years, and that many of them had been engaged in road work under defendant during the time defendant was commissioner; that none of them had ever seen, heard of, or worked with L. A. Harper; and that as far as they knew no such person had ever done any road work in LeFlore county, and particularly any road work in commissioner's district No. 2. Wherever these witnesses testified to knowing any of the other one hundred forty-nine claims presented, those persons were immediately subp naed and brought into court, and all those who could be found testified that they had never done any work in LeFlore county and had never filed any claim and had received no part of the proceeds of these warrants.
The defendant did not take the witness stand.
Defendant called Woodson Mathies, his brother, to prove that L. A. Harper was a real person and that after he had indorsed the warrant the witness cashed it at his bank.
On cross-examination, however, this witness said he did not see L. A. Harper indorse the warrant, nor did he cash it for him; that he had no personal knowledge of the matter and was merely testifying from what the bank records purported to disclose.
The state had previously used this witness to show that the state's exhibit 358, being a warrant included in the list of other offenses, for the sum of $427, had been cashed at his bank; that the warrant was presented and indorsed by defendant and the witness gave him $427 in cash.
To sustain the charge, the state must prove that the defendant in his official capacity approved the L. A. Harper claim knowing the same to be fraudulent and unlawful. Proof of these facts by direct evidence would usually be impossible.
After the state had shown that defendant was county commissioner, that he presented the claim and vouched for it, and that it was approved and allowed by the board of county commissioners while he was chairman, and that he received the warrant from the clerk, the state then showed by numerous long-time residents of that section of the country that no such person existed or was known in that community, and that defendant in the same manner had handled one hundred forty-nine other claims, some of which were fictitious and fraudulent, and others for real persons but fraudulent. This evidence is sufficient to support the verdict of the jury and the case must be affirmed unless the errors complained of by defendant are sufficient to require a reversal.
Defendant's second contention is that there is a fatal variance between the allegations of the information and the proof offered.
The information charges in substance that defendant was the duly elected, qualified, and acting commissioner of LeFlore county, and in his...
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