Moore v. State

• Decision Date: 25 October 1935
• Docket Number: A-8847.
• Parties: MOORE v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

50 P.2d 746

58 Okla.Crim. 122

MOORE v. STATE.

No. A-8847.

Court of Criminal Appeals of Oklahoma

October 25, 1935

Syllabus by the Court.

1. An information based on section 9193, O. S. 1931, which alleges that an officer of the bank had abstracted and willfully misapplied funds and credits of the bank, is not duplicitous in alleging both the abstracting and willful misapplying of funds of the bank in the same count.

2. Where a statute defines an offense and enumerates and describes the different acts or things which constitute the offense, all the said acts may be charged in a single count conjunctively, since though each by itself may constitute the offense, all together do no more, and constitute but one and the same offense.

3. The court did not err in overruling the defendant's motion to dismiss, and his demurrer to the information.

4. Instruction Nos. 6, 7, and 8, given by the court on its own motion, are as favorable to the defendant as they are to the state, and the court did not err in giving the same.

5. A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime. Where the acts of the witness are undisputed or admitted, it is for the court to say, as a matter of law, whether or not the witness is an accomplice, but where the evidence is conflicting, as in this case, the question is one of fact for the jury, to be submitted under proper instructions.

6. The evidence of Earl Buttrill is fully corroborated by oral and record testimony, showing conclusively the guilt of the defendant.

Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.

J. E Moore was convicted of embezzlement, and he appeals.

Affirmed.

Priest & Belisle, of Oklahoma City, for plaintiff in error.

Mac Q Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty Gen., for the State.

DAVENPORT Presiding Judge.

The plaintiff in error, for convenience hereinafter referred to as the defendant, was convicted of embezzlement and his punishment fixed at a fine of $1,000, and imprisonment in the state penitentiary for a term of ten years.

The record in this case is voluminous, containing 930 pages. It is not deemed necessary to set out the testimony in detail. The testimony in narrative form that it is deemed necessary to incorporate in this opinion shows the following facts:

On or about the 22d day of June, 1933, the defendant in this case was president of the Capitol State Bank of Capitol Hill Oklahoma City, Okl.; there was on deposit in said bank at that time $1,654.81, in small accounts running from a few dollars up in the neighborhood of one hundred dollars, known as inactive accounts; these accounts were carried separate from the active ledger, in what was known as a dormant ledger. The only record kept by the bank daily to keep the books in balance of these dormant accounts was what was known as a control sheet in the active ledger. Between the 22d day of June, 1933, and the 11th day of August, 1933, the defendant by the use of forged checks or debit memorandums extracted the said sum of $1,654.81 represented by these small inactive accounts, and that by reason of the defendant so withdrawing and extracting this amount the defendant, as president of the Capitol State Bank of Capitol Hill, embezzled said amount.

The state, in order to sustain its allegations, called in chief James M. Fitz, who was an assistant of the bank commissioner, who testified the bank closed on December 30, 1933, and his examination showed, considering the withdrawals, the bank was out of balance $1,654.81. The witness identified the bank's records on the report to the banking department showing the amount of the shortage.

Hoy Harshal and P.J. Winkler testified in substance to the same facts as did the witness Fitz. George Fox, a special assistant to the bank commissioner, identified a number of the exhibits as being in the handwriting of the defendant.

Lester Johnson, a bookkeeper in the Capitol State Bank of Capitol Hill, from 1925 until it closed, testified he was keeping one of the books at the bank at the time it closed; that the inactive ledger was kept in the vault; the inactive accounts of the depositors were kept in a loose-leaf ledger; the books were kept in balance by a control sheet in the active ledger, and when a check or deposit slip against one of the inactive accounts came in for posting in the ledger kept by him he would post the debit slip against the control sheet, but that Earl Buttrill, cashier in the bank, would always demand the return of the debit memorandum, check, or draft against such inactive account, and that Mr. Buttrill or some one other than the bookkeeper posted them on the account affected.

Witness Johnson further stated, when State Exhibit No. 21 was presented to him, that he handled ten of the items contained in the exhibit, and the ones he handled he posted on the control sheet in the active ledger, and took the sheet representing that account out of the inactive ledger and gave them to Mr. Buttrill; that would be the last time he would have occasion to see the sheet; he was familiar with the handwriting of defendant Moore; upon examination of Exhibits 33 to 47, all except Exhibit 47 was in the handwriting of Mr. Moore, and Exhibit 47 was in the handwriting of Earl Buttrill; at the time Exhibits 33-47 came to his hands for posting he knew in whose handwriting they were, and that they were in J. E. Moore's handwriting; with the system employed when money was paid out of this the debit slips would be taken out of the teller's window, then the check would be run to the bookkeeper in order to balance that window.

Earl Buttrill brought to me to post on his account sheet on the inactive accounts; Mr. Buttrill insisted on me not charging them to the individual customer but to extract them from the inactive list and bring them to him; I never saw the defendant Moore write any of the debit slips, nor did I see the defendant receive any of the money; when I returned the ledger sheet to Mr. Buttrill that was the last I knew anything about the transaction.

Earl Buttrill, testifying for the state, says: I was cashier of the Capitol State Bank of Capitol Hill, Oklahoma City, Okl.; had been working in the bank since June, 1924, until it closed on December 30, 1933; Mr. Moore was the recognized head of the bank up until it closed, from September, 1932. I am acquainted with the handwriting of Mr. Moore. Witness identified the 112 instruments marked as Exhibit 60 in the record, and stated the signatures in this exhibit were in the handwriting of Mr. J. E. Moore. I knew the inactive accounts were kept in a separate ledger which remained in the vault during the day; all other ledgers were brought out where the bookkeepers could use them. There were two teller windows in the bank at the time it closed; I worked at No. 1 chiefly; Lester Johnson was teller at window No. 2. All the employees in the bank occasionally worked at either of the windows, and all of the employees had access to cash in the windows during the day.

Exhibits from 33 to 47 were first handled in No. 1 window; I handled them before they got out of the window; from there they went to the bookkeeper. Exhibits 33 to 46, inclusive, are in the handwriting of Mr. J. E. Moore. In handling these items Mr. Moore came to the window and took the money out on debit slips and came to me to get the money. Exhibit 47, being the McCourry account for $129, Mr. Moore and I went back to the inactive accounts and figured that Mr. McCourry had already checked out the money in some manner or other, and that the money really belonged to the bank. Mr. Moore always gave me the inactive ledger sheet to be checked against, and I made the file on them. Mr. Moore and I discussed keeping this inactive ledger sheet; the only way I could figure out the bank could keep the balance and know if the inactive sheet had been tampered with was to keep the sheet in a separate file with the balances thereon.

The witness further stated: I kept Exhibit 21 in a separate file; when the debit sheets were sent to the bookkeeper in order to keep his books in balance, they were charged off the control sheet in his active ledger, and I made a file of the inactive accounts which were so charged; I have seen Mr. Moore write debit slips and take out cash on them. I have received no promise of immunity or assistance of any kind from the banking department in consideration of my testifying in this case, although I was charged with a like offense in the district court of Oklahoma county.

Earl Buttrill was recalled by the state as a witness, and stated: I have worked for the bank nine years and six months; have been cashier since 1925; I was seventeen years old at the time I became cashier; held the position from 1925 until some time in April, 1926. In 1928 I was again elected cashier, and continued to hold that position until the closing of the bank; witness identified a number of exhibits offered in evidence as being in the handwriting of J. E. Moore.

Other witnesses were called to identify the signature of J. E. Moore, and a number of experts identified many of the exhibits as being in the handwriting of J. E. Moore.

The state introduced testimony showing the amount of the shortage, and the method by which the defendant drew the money from the bank.

The defendant, testifying in his own behalf, stated: I have lived in Oklahoma City the past fifteen years; I first became president of the Capitol State Bank of Capitol Hill, Oklahoma City, in 1926, holding 80 shares of the stock at that time; I held that position until June or July, 1929, at which time I sold my stock and retired...