People v. Burns

• Decision Date: 03 April 1928
• Docket Number: No. 124.,124.
• Citation: 218 N.W. 704,242 Mich. 345
• Parties: PEOPLE v. BURNS.
• Court: Michigan Supreme Court

242 Mich. 345

218 N.W. 704

PEOPLE

v.BURNS.

No. 124.

Supreme Court of Michigan.

April 3, 1928.

Exceptions from Circuit Court, Bay County; Samuel G. Houghton, Judge.

Samuel J. Burns was convicted of embezzlement, and he excepts before sentence. Judgment affirmed, and cause remanded for sentence.

Argued before the Entire Bench, except FLANNIGAN, C. J. William W. Potter, Atty. Gen., Hugo E. Braun, Pros. Atty., of Saginaw, and Stanley F. Quinn, Asst. Pros. Atty., of Chesaning, for the People.

W. J. Nash, of Saginaw (Collins & Thompson, of Bay City, of counsel), for respondent.

McDONALD, J.

The defendant was convicted under an information charging him with the embezzlement of $20 represented by a warrant of the treasurer of the county of Saginaw issued to one Anna Anderson. The information contained five counts. On the trial the third, fourth, and fifth counts were stricken out, and the case was submitted to the jury on the first and second. The jury found the defendant guilty on the first count, and not guilty on the second. The first count was charged under section 15308, C. L. 1915, which reads as follows:

‘If any officer, clerk or other person, employed in the treasury of this state, or in the treasury of any county, or in any other public office within this state, shall commit any fraud or embezzlement therein, he shall be punished,’ etc.

At the time of the alleged embezzlement, the defendant was probation officer of the mothers' pension division of the probate court of Saginaw county, Mich. On June 23, 1925, he received a warrant from the treasurer of Saginaw county payable to the order of Anna Anderson, who was on the mothers' pension list. It is charged that he did not deliver the warrant to Mrs. Anderson, but forged her name thereto, cashed it, and appropriated the money to his own use.

Before the trial, the prosecuting attorney filed a motion for a change of venue, alleging that the people could not have a fair trial in the county of Saginaw. The motion was supported by numerous affidavits and was contested by the defendant, who filed a large number of affidavits in opposition thereto. The motion was granted, and the case was transferred for trial to Bay county. It is here on exceptions before sentence.

The first question presented by the record is that the conviction cannot be sustained under section 15308, C. L. 1915, on which the first count of the information is based.

It is claimed by the defendant that this statute was not intended to cover a case like the one at bar for the reason that, as probation officer, no duty was imposed on him to receive, pay out, or account for the safekeeping of any money belonging to the county of Saginaw; that the money which he is charged with having embezzled did not come into his possession by virtue of his office or employment, and therefore he could not be guilty of embezzlement under the statute on which the information is based.

It is charged in the information that the defendant was ‘an officer, clerk, and personally employed by the county of Saginaw,’ and that he embezzled certain money that came into his possession and control ‘by virtue of his said office and employment.’

The statute applies to any officer, clerk, or other person employed in any public office who ‘shall commit any fraud or embezzlement therein.’

The defendant was an officer of the county of Saginaw. The question is, Did he commit an embezzlement in that office?

It is true that the law did not require him to handle any of the county's money. The warrants for payments to mothers' pensioners were issued by the county clerk on order from the probate judge. The clerk passed them over to the county treasurer who signed them and mailed them to the pensioners. This method of payment was not always followed. In many instances, the treasurer gave the warrants to the defendant who personally delivered them to the pensioners. This practice followed a suggestion of the probate judge, who testified:

‘I acquainted Mr. Burns with the usual procedure. I have no recollection of giving any specific instructions in regard to his duties concerning any checks excepting at the beginning of his appointment we talked over the matter of how to best get acquainted with the recipients of this fund, and I suggested to Mr. Burns that it would be advisable at that time to call in all pensioners for an interview with them at the time that the check was given to them.’

Acting on this suggestion, the defendant received from the county treasurer every month a number of mothers' pension checks. The deputy treasurer testified:

‘He came where the pile was and took them in my presence and took them away. Sometimes he would take five, and he has taken as high as twenty or twenty-five.’

In this way he came into possession of the check, the proceeds of which he is alleged to have embezzled.

It is said by counsel for the defendant that the law never contemplated that probation officers should receive checks and deliver them to mothers' pensioners. Conceding the correctness of counsel's contention, the fact remains that he did receive checks and did so as...