People v. Henderson

• Decision Date: 15 January 1942
• Docket Number: No. 26355.,26355.
• Citation: 378 Ill. 436,38 N.E.2d 727
• Parties: PEOPLE v. HENDERSON.
• Court: Illinois Supreme Court

378 Ill. 436

38 N.E.2d 727

PEOPLE

v.HENDERSON.

No. 26355.

Supreme Court of Illinois.

Nov. 24, 1941.

Rehearing Denied Jan. 15, 1942.

Error to Circuit Court, Champaign County; Frank B. Leonard, Judge.

Joshua D. Henderson was convicted of embezzlement, and he brings error.

Affirmed.

SHAW, GUNN, and SMITH, JJ., dissenting.Green & Palmer, of Urbana (Oris Barth, of Urbana, of counsel), for plaintiff in error.

George F. Barrett, Atty. Gen., and William L. Springer, State's Atty., of Urbana (Fred B. Hamill and Roy C. Freeman, both of Champaign, of counsel), for defendant in error.

FARTHING, Justice.

Joshua D. Henderson, aged sixty-nine, was indicted in the circuit court of Champaign county for embezzlement of the moneys of the St. Joseph Building, Loan, and Investment Association. He was found guilty by a jury of embezzling $612.91 from that association, and was sentenced. He has sued out this writ of error to review the judgment of conviction.

Eugene J. Murphy, an accountant employed by the Auditor of Public Accounts in Springfield from 1933 to 1938, was sent by the chief building and loan examiner to examine the St. Joseph Building, Loan and Investment Association, hereafter called the association. Upon his arrival in St. Joseph on March 15 or 16, 1934, he introduced himself to the defendant, the secretary of the association, and told him the purpose of his visit. The defendant delivered to Murphy the books of the association that he requested, and Murphy and his assistant began verifying the accounts. Murphy testified that just before quitting time at the end of the first day of the examination, he asked defendant about several entries in the books and said, ‘Now these, they don't look right to me and I wonder if you have any recollection of them having been corrected later on in the year.’ Defendant said he couldn't remember; that it was too far back. Murphy questioned him about some other items, and defendant objected and said: ‘Why don't you come around here every year the way you are supposed to and then I would probably know something about these things.’ Murphy then said, ‘You better jog your memory and see if you can't remember what happened in these transactions, and if you can't you better start thinking of where you are going to get about $800 to put in here before I leave, to take care of these differences.’ Defendant replied: ‘Oh you are crazy.’ Nothing further was said at that time. The defendant testified that he could not recall this conversation, but he did not deny that it had taken place. In the evening of the second day, Murphy received a call from his superior in Springfield. Murphy testified that the following morning defendant asked him if he had been in touch with Springfield, and Murphy replied: ‘Yes.’ The defendant then said: ‘Well, I guess you know all about it then,’ to which Murphy replied: ‘Yes, I do.’ Murphy then suggested they take a walk to defendant's home, and the defendant agreed to this. The defendant's attention was not called to this conversation, but he did testify he took Murphy to his home on the second or the third day of the examination. Defendant's home was located in the same block as the office of the association. Murphy testified that at defendant's home he asked defendant what was going on. Defendant told him that when he took over the secretary's job approximately twenty-one years ago, a shortage existed in the association's funds, and that he called the attention of one of its directors, U. G. Swearingen, to this. Swearingen told him to go ahead and that he would see that the shortage was taken care of. Swearingen died, and defendant then told another director of the association, its president, I. N. Walker, about the shortage and Walker also told Henderson to go ahead and he would see that the shortage was taken care of. When outstanding certificates of the association came in for redemption, the defendant issued and sold new ones to take them up. Murphy testified he asked defendant whether he had any record of these certificates and defendant replied that he did. Murphy asked to see the record, and defendant produced it from among the records at his home. This record is designated People's exhibit No. 5, and is known as a stock certificate record. Murphy testified that a stock certificate book was also delivered to him at the same time, but he was unable to identify the exact book among a group of such books. Nothing else was said in reference to whether the defendant kept the above records in his home all the time, or why they were not in the office of the association. Murphy denied that at the time of the conversation the defendant showed him defendant's exhibit No. 300, which purports to be a note bearing date of June 30, 1932, for $20,000 payable to the association and signed by I. N. Walker, which Henderson testified was given to him by Walker to cover most of the shortage in the association. Henderson's version of this conversation is different. He testified that he told Murphy that he had a part of the books of the association at his home, as he frequently had, because of his duties as secretary of the association, and that he would deliver them to Murphy at his home. He also told Murphy that he wanted to turn over all of the affairs of the association to him. He said he turned over all the books of the association to Murphy, but he wasn't able to recall which books he delivered at his home. Although he could not recall delivering either People's exhibit No. 5 or People's exhibit No. 7, a stock certificate book, to Murphy while at his home, he did not deny delivering them there.

Murphy identified many of the records of the association he had examined and testified they were delivered in the same condition as when obtained from Henderson, to Rosenberger, who completed the examination of the association after Murphy had gone. Murphy gave Rosenberger the data that he had obtained, and informed the latter of his conclusions. Rosenberger completed the examination of the records of the association. He arrived in St. Joseph about March 20, 1936, and had a short conversation with the defendant. They discussed the conditions of the association, and the shortage that defendant had found in its book shortly after he became secretary. They met Murphy, and he turned some of the records of the association over to Rosenberger, and defendant delivered other records to him. People's exhibit No. 5 was one of the records delivered by Murphy. Rosenberger identified the records that had been delivered to him at the time of this first meeting, and testified that People's exhibits Nos. 6, 7, 8, 9, 10, and 11, all of which were stock certificate books, were not among those records. Rosenberger also testified that defendant told him the last named records were kept at his home, but, on cross-examination, he admitted that Murphy, and not the defendant, had given him this information. Murphy brought the last mentioned records to the office of the association during the first day that Rosenberger was there. A few days later defendant voluntarily delivered to Rosenberger People's exhibit No. 118, two large yellow sheets of ledger paper entitled ‘Cash receipts,’ and, the next day, People's exhibit No. 117, a small blue book. This contained the heading ‘Cash Collected for B & L’ followed by fifteen items from five people, referred to later. According to Rosenberger, defendant told him that the items listed in these two exhibits were collections that he had made but which he had not turned over to the association, and that he would pay them back when he could. Nothing else was said in reference to either of these two exhibits. The defendant denied making these statements to Rosenberger and testified that instead he told Rosenberger when he delivered exhibit No. 118 to him: ‘Mr. Rosenberger, here are some collections that represent an incompleted transaction. I have handled this according to our custom, particularly at this time of the year when taxes must be paid and large per cent of insurance is rewritten in taking care of taxes to prevent tax sales and in paying for insurance premiums that have been written, and there has been no meeting of the directors recently at which I could present my items of expense for things and get it allowed and turned in and these entered on the regular sheets and that there is also some insurance expiring very soon I want to call your attention to.’ On cross-examination as to his conversation with Rosenberger when defendant gave him exhibit No. 117, defendant said: ‘It was, in substance, to the effect that this book also represented some collections which I had made and had not recorded for two reasons; one being that some of it was used for the same purpose that this on exhibit No. 118 was used and for the further and more important reason that much of it was collected under receivership and contract, which is a separate matter than the ordinary loans and a separate set of books had been set up for us by Professor Scovill with headings for this kind of transaction, and I wanted to talk to him or the examiners so as to know just how to make these entries on that new set of books.’ Henderson also said he told Rosenberger that he hoped to turn in his itemized bill for the insurance and taxes which he had paid, as soon as he had an opportunity to do so. Rosenberger denied that any such conversation took place and denied that defendant made those statements to him.

In addition to being secretary of the association, the defendant wrote insurance. Some insurance on the property which belonged to the association expired. Rosenberger said he gave defendant permission to renew two or three policies, but did not make arrangements for the payment of the premiums.

The defendant admitted making the collections listed in exhibits Nos. 117 and 118, but denied that he intended to apply this money to his own use. He testified that Rosenberger never...