Platt v. State

• Decision Date: 02 April 1943
• Docket Number: 31534.
• Citation: 8 N.W.2d 849,143 Neb. 131
• Parties: PLATT v. STATE.
• Court: Nebraska Supreme Court

8 N.W.2d 849

143 Neb. 131

PLATT v. STATE.

No. 31534.

Supreme Court of Nebraska

April 2, 1943

Syllabus by the Court.

1. In a prosecution under section 28-301, Comp.St.1929, the state is required to prove an unlawful conspiracy to commit a felony or to defraud the state, and the doing by one or more of the conspirators of an overt act to effect the object of the conspiracy.

2. Where the overt acts tend to establish a scheme or plan to defraud the state, they may be properly shown as evidence of a preexisting unlawful conspiracy.

3. Where two persons are charged with a conspiracy and one is convicted, the acquittal of the other upon a separate trial does not affect the previous conviction.

4. Under such circumstances the finding of one of two persons charged with conspiracy to be guilty concludes also the guilt of the other for the purposes of that trial. The subsequent acquittal of the other indicates only a failure of proof as to him.

Perry Van Pelt & Marti, Arthur E. Perry, and J. P. O'Gara all of Lincoln, for plaintiff in error.

Walter R. Johnson, Atty. Gen., and Rush C. Clarke, Asst. Atty. Gen for defendant in error.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE and YEAGER, JJ.

CARTER, Justice.

This is a criminal proceeding in which the defendant Earl T. Platt and another were prosecuted for defrauding the state of Nebraska under the provisions of section 28-301, Comp.St.1929. Defendant Platt, who will hereafter be referred to as the defendant, was tried separately. The jury returned a verdict of guilty and the court imposed a sentence of one year in the penitentiary. The defendant brings error to secure a review of the case in this court.

The information alleged in substance that on or about September 1, 1938, and continuously thereafter until April 1, 1941, the defendant and one Natalie Stromberger unlawfully conspired to defraud the state of Nebraska, with the intent to so defraud by aiding and directing certain employees of the University of Nebraska to make claim for and receive from the state large sums of money upon the false pretense that said employees had performed services for the state for which said money was owing. It is further alleged that defendant and Natalie Stromberger conspired with each other and with other persons in so defrauding the state. The information contains allegations of five separate and distinct overt acts with as many or more different persons all tending to establish the charge. The facts will be set forth more particularly in the discussion as to the sufficiency of the evidence to sustain the conviction.

The record discloses that the defendant was the assistant director of University Extension in charge of supervised correspondence study with a number of part-time employees under his supervision and direction, and in addition thereto a full-time stenographer and secretary, Natalie Stromberger. The record shows that all university operations were conducted under an annual budget prepared by the Board of Regents. All claims for salaries were required to be approved by the person having immediate charge of the employees and by the head of the department. It was therefore the duty of the defendant to approve all salary claims in his department and refer them to the head of the University Extension Division for approval before they were sent to the chancellor and finance secretary for final consideration. It is quite evident from the record that all the officers superior to the defendant were required by necessity to rely upon the approval of defendant as to the detail of each claim made by employees under his supervision.

The evidence further shows that defendant had a number of students working in his department and under his immediate direction on a part-time basis. In order to compute their earnings they were required to register on time cards the actual hours they worked, a time clock being provided by which the number of hours of employment could be correctly recorded and ascertained. During the time mentioned in the information, the defendant informed five student employees that they were to manipulate the time clock and time cards in such a manner as to indicate that they had performed more hours of service than they had actually performed. The students were then advised by defendant that each should pay back to him or to Natalie Stromberger the amount of money in excess of that which they had actually earned. In this manner defendant and Natalie Stromberger, according to defendant's own statement, collected $411.74 from the five students. The claims in each case were falsely verified and approved by the defendant and subsequently approved by the head of the department, the chancellor and the finance secretary, without knowledge of their falsity. In this manner the state auditor and state treasurer were caused to issue warrants on the state treasury in payment of the fraudulent claims. There is evidence in the record that a large part of this money was used for the payment of an unauthorized salary increase to Natalie Stromberger, the defendant admitting that approximately $425 was paid to her for this purpose.

The evidence further shows that four other employees were induced and directed by the defendant to falsely make out time cards in the names of their wives, when in truth and in fact the wives were not at the time in the employ of the university. The money thus obtained was delivered to defendant, or Natalie Stromberger, or in some instances retained by the employee husbands of the false claimants as payments on amounts which defendant had promised the department would pay them. In one instance an employee made a trip to California to address an educational meeting only after defendant had promised that his department would bear the expenses of the trip. No money being available for that purpose, defendant suggested the filing of fraudulent time cards by the employee's wife until the sum of $150, the cost of the trip, had been paid back to him. The plan was carried out. There is evidence in the record that funds thus collected from other employees were used to purchase an addressograph, a radio clock, venetian blinds, an air conditioning machine, an interoffice communication system and a number of small items of which no record was made, all of which totaled approximately $292.11 according to defendant's own statement, and none of which purchases was authorized to be paid for from the funds of the state. Defendant testifies that he never received any part of these funds and there is no direct proof that he ever did, although a portion of the moneys collected is not accounted for.

A recitation of the facts in detail can serve no useful purpose. That defendant and Natalie Stromberger conspired with each other and with third persons to defraud the state and to use the money thus obtained for purposes not authorized is clearly established. We therefore conclude that the evidence was amply sufficient to sustain the verdict, unless there was error in the record sufficient to vitiate the verdict and judgment.

Defendant urges that there is no evidence in the record sufficient to sustain a finding that a conspiracy existed within the meaning of the statute. The essence of a criminal conspiracy is an unlawful agreement to violate a criminal statute. It is not necessary that direct evidence of a positive agreement to jointly participate in the violation of a criminal statute be produced in order to establish the crime. A criminal conspiracy must necessarily be entered into with the intent to defraud the state or to violate a criminal law and, intent being a matter of the mind, it is rarely possible to prove that element of the crime except by circumstances. In the case before us the defendant and Natalie Stromberger participated in the falsifying of time cards and pay roll vouchers and caused the amount gained by padding the pay roll to be returned to them. The overt acts were established not only by the employees involved, but by the evidence of the defendant himself. The evidence is clearly sufficient to sustain the jury's verdict that defendant, Natalie Stromberger and others, conspired to defraud the state. The statute contains the provision "and one or more of such parties do any act to effect the object of the conspiracy." This requires the allegation of an overt act in the information and proof thereof by evidence beyond a reasonable doubt. We think that an overt act done in furtherance of the conspiracy was alleged and amply proved. The overt acts established by the evidence are proper to be considered by the jury in connection with all the other evidence in determining whether a conspiracy existed, and where, as in this case, the overt acts tend to establish a scheme or plan to accomplish some unlawful object, they may be properly shown as evidence of a preexisting conspiracy. We are of the opinion that the evidence of all the overt acts proved, all based on the primary object of obtaining unauthorized funds by falsifying claims against the state, participated in by defendant, Natalie Stromberger and other employees, is sufficient to sustain the jury's finding that defendant, Natalie Stromberger and others, did have an agreement or understanding to secure funds from the state by the fraudulent method shown.

As we have previously mentioned, under our statute an overt act effecting the object of the conspiracy is an essential element of the crime. The information must therefore allege one or more overt acts in order to charge the offense. The defendant filed a motion to quash the information as to each and every overt act therein alleged. In view of the fact that an overt act effecting the object of the conspiracy is a...