State v. Baker
| Decision Date | 28 May 1926 |
| Docket Number | 26910 |
| Citation | 285 S.W. 416 |
| Parties | STATE v. BAKER |
| Court | Missouri Supreme Court |
North T. Gentry, Atty. Gen., and W. T. Frank, Asst. Atty. Gen., for the State.
The appellant was charged by information with the crime of embezzling public funds as treasurer of Reynolds county found guilty, and sentenced to imprisonment in the penitentiary for a term of two years in accordance with the verdict of the jury, from which he appealed.
Roy C Baker was elected county treasurer in November, 1920, and held that office from January 1, 1921, until October 26 1923, at which time he was removed from office, and was succeeded by Roy Massie. At the time he assumed the office he received from his predecessor, J. J. Jamison, $ 46,386.81 of the public funds. Of this amount $ 16,717.76 was on deposit in the Ellington Bank, and $ 29,651.05 in the Reynolds County Bank, in lump sums, not specifying the particular funds to which the money belonged. These funds were transferred to the credit of Baker as county treasurer by checks on these banks, and Baker gave Jamison receipts therefor, specifying the particular funds to which they were credited. During Baker's term of office he kept his accounts in these banks, depositing public funds coming into his hands and his personal funds in said banks in lump sums to his credit as county treasurer. He drew on these accounts for personal and official purposes by checks signed by him as county treasurer. On October 26, 1923, he drew a check on the Reynolds County Bank in favor of Roy Massie, his successor in office, for the sum of $ 42,583.97, and another check in Massie's favor on the Ellington Bank for the sum of $ 7,853.91, making a total of $ 50,437.88, and these accounts were transferred on the books of these banks to the credit of Massie as county treasurer. The proof is quite conclusive that, according to his receipts and disbursements, Baker should have had in his hands at this time, of the public funds, a balance of $ 55,879.07, and that he was short in the sum of $ 5,049.45.
An audit, covering the period of Baker's incumbency, of the books, records, and accounts of all the officers of Reynolds county, including those of the county treasurer, was made under the direction of the state auditor. The books and records and the reports and tabulations of the auditors were in evidence. This audit showed that Baker, during his incumbency, according to his own records and by virtue of his office, received in public funds the sum of $ 348,529.04. Including the $ 46,368.81 received from his predecessor Jamison, these receipts totaled $ 394,897.85. His disbursements were $ 339,018.79, leaving a balance of $ 55,879.07 that should have been in his hands when he turned over to Massie, his successor, $ 50,437.88.
The defendant stood on a demurrer to the evidence. The appellant has filed no brief. We will consider the errors assigned in the motion for new trial, and such, if any, as may appear on the face of the record.
1. Appellant filed a plea in abatement, averring that he was not accorded a preliminary examination. It appears that appellant had an examination before E. A. Grassman, a justice of the peace, who was appointed by the county court at a special term of court, and that notice of the holding of the term was not given as required by the statute. It is contended that the appointment of Grassman as justice of the peace was, therefore, a nullity, and that appellant did not have a lawful preliminary examination. Conceding that this appointment was irregular, yet it is well settled that Grassman was a de facto officer, and that his official acts cannot be impeached collaterally. Wilson v. Kimmel, 109 Mo. 260, 19 S.W. 24; Aiken v. Sidney Steel Scraper Co., 197 Mo.App. 673, 198 S.W. 1139. The plea in abatement was properly overruled.
2. Error is assigned in overruling the motion to quash the information. The information charges, in substance, that on or about October 26, 1923, Roy C. Baker was county treasurer of Reynolds county in the state of Missouri, he having been duly elected and qualified as such on or about January 1, 1921, and by virtue of such office had charge and custody of all the public moneys belonging to and being the property of said county and state; that it was his duty to keep separate and distinct in various and distinct and separate funds the revenues as required by law, but, to the contrary, the said Roy C. Baker commingled said funds with each other and with his personal moneys and certain of said public moneys, to wit, the sum of $ 5,049.45, of the value of $ 5,049.45, the particular description and denominations of which said moneys are unknown to the said prosecuting attorney, nor can the particular sources or funds from which said moneys came into his charge as county treasurer be determined, because said Roy C. Baker commingled all the moneys of said county and state as aforesaid, and the particular sources and funds from which said amount was received and taken by said Roy C. Baker, as said county treasurer, cannot be stated; all of which said public moneys belonging to the State of Missouri and county of Reynolds by him received and taken into his possession by virtue of his said office of county treasurer, as aforesaid, he, the said Roy C. Baker, did on or about October 26, 1923, at the said county of Reynolds, unlawfully, fraudulently, and feloniously embezzle, make way with, secrete, and convert to his own use, etc.
The grounds assigned for quashing the information are that the facts alleged do not constitute an offense, and two offenses are commingled in one count.
The information is based on section 3334, R. S. 1919, which provides that --
'If any officer, appointed or elected by virtue of the Constitution of this state, or any law thereof, * * * shall convert to his own use, in any manner whatever, * * * or shall make way with or secrete any portion of the public moneys, or any moneys that may have come to him or them by virtue of his or their office or official position, * * * every such officer, * * * shall, upon conviction, be punished in the manner prescribed for stealing property of the kind or the value of the article so embezzled, converted, taken or secreted.'
In State v. Noland, 111 Mo. 473, 485, 19 S.W. 715, 716, Gantt, P. J., said:
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