State v. Bemis

• Decision Date: 26 January 1926
• Docket Number: 1317
• Citation: 242 P. 802,34 Wyo. 218
• Parties: STATE v. BEMIS [*]
• Court: Wyoming Supreme Court

242 P. 802

34 Wyo. 218

STATE v. BEMIS ^[*]

No. 1317

Supreme Court of Wyoming

January 26, 1926

APPEAL from District Court, Natrona County; BRYANT S. CROMER, Judge.

E. C Bemis was convicted of embezzlement, and he appeals.

Affirmed.

Vincent Mulvaney and Edwin Barrett for appellant.

The prosecution did not prove that a crime had been committed; 16 C. J. 529; names of all state witnesses were not endorsed on the information in compliance with the court's order; 7427 C. S.; Boulter vs. State, 6 Wyo. 77; the court erred in overruling appellant's motion for directed verdict; it being shown that the prosecuting witness and defendant were partners; 20 C. J. 445; 9 R. C. L. 1281; 4177 C. S.; 20 R. C. L. 824-836; State vs. Kent (Minn.), 21 Am. Rep. 764; the court erred in overruling appellant's motion for judgment notwithstanding the verdict and in arrest of judgment. There was no evidence of a commission of an offense in Natrona County, and therefore the verdict is not sustained by evidence; the verdict was contrary to the evidence since but $ 950.00 was involved and appellant was convicted of embezzling $ 1075.00.

David J. Howell, Attorney General, and John C. Pickett, Assistant Attorney General, for respondent.

The record on appeal was not filed with the District Court and should be stricken from the files; 6406 C. S.; the clerk's certificate did not include the appeal record; it was returned to the clerk for certification and refiled in the Supreme Court out of time, thus preventing jurisdiction on appeal; 6404 C. S.; Coffee vs. Harris, 27 Wyo 494; appellant's motion to strike testimony of respondent's witness Huber was properly denied; 16 C. J 864; endorsement of name of Mrs. Paul Huber after the trial commenced was not error; 7427 C. S.; defendant was not a partner of the prosecuting witness, but a mere agent; 4177-78 C. S.; Holgate vs. Downer, 8 Wyo. 334; an agent working on commission is guilty of embezzlement if he appropriates funds of principal in excess of his commission; 20 C. J. 444; Kentucky vs. Jacobs, 104 S.W. 345, 13 L. R. A. 511, and cases in note. The goods were shipped to Casper and there disposed of by defendant; the evidence showed embezzlement committed in Natrona County. Defendant's motion for directed verdict was properly denied. Defendant was charged with embezzling $ 1075.00, being $ 950.00 proceeds from sale of apples and $ 125.00 advanced to pay freight. The record on appeal is not prepared in accordance with law, nor filed within the time. No misconduct on the part of the prosecuting attorney was shown.

POTTER, Chief Justice. BLUME and KIMBALL, JJ., concur.

OPINION

POTTER, Chief Justice.

The case is here on direct appeal for the review of a judgment upon appellant's conviction of the crime of embezzlement. A motion to strike the record from the files and dismiss the appeal was filed by the attorney general on June 30, 1925, the record on appeal having been filed with the clerk of this court on June 3. The grounds of the motion were that this court is without jurisdiction for the reasons: 1. That the record was not perfected and filed in the district court within the time required by law. 2. That the transcript of the testimony was not filed with the clerk of the district court as required by the statute. 3. That the record does not contain a certificate of the clerk of the district court showing the same to be true and correct, as required by statute.

On July 7, 1925, a motion was filed by the appellant that the record be returned to the district court for proper authentication in accordance with the records now on file in the office of the clerk of said court. Pending that motion, a stipulation was entered into between counsel consenting that the record be returned to the district court for amendment to conform to the objection raised in respondent's motion to strike and dismiss, "it appearing that the said information can be supplied from the data available in the office of the clerk of the district court." It was provided, however, in said stipulation, that such amendment should be without prejudice to respondent's motion, and that said motion may be considered when the case is presented on its merits. On August 24, an order was entered pursuant to the stipulation directing that the record be returned to the clerk of the district court for the purpose of showing the date of its filing in said court and for the attachment thereto of a proper clerk's certificate, but with the proviso that the said correction shall not in any way affect the rights of the respondent. The cause was thereafter submitted upon the merits and also upon the motion. And the first matter to be considered is whether the motion should be sustained, notwithstanding that upon the return of the record it was corrected by the clerk's endorsement thereon of the date of its filing in the office of the clerk of the district court, which was well within the time provided by statute for the preparation and such filing of the record, and the addition thereto of an authentication certificate in due form, and then re-filed in this court. We think that the motion should be denied.

The record contained ample recitals to show that it had in fact been received by the clerk of the district court for filing on or before May 1, 1925. The transcript of the testimony is endorsed as filed on that date, and bore the reporter's certificate required by law, dated April 13, 1925, and that was shown to have been subscribed and sworn to before the clerk of the district court on that date, and contained also the clerk's certificate dated April 23, 1925, authenticating as correct the instructions, bench warrant, and journal entries, including the judgment, embraced within the record, and a final certificate dated May 1, 1925, stating that it contained all of the original papers filed in the case and a true and correct copy of all journal entries, and then describing each of the said original papers, as for example, "The Information, The Bench Warrant, The Demurrer, The Verdict," etc., and the seal of the court was attached thereto. Because that certificate was deemed by counsel to be incorrect and insufficient in form, in not stating in the statutory words that the "record is true and correct," the record was returned for correction in that respect. But the original certificate, having been dated May 1, 1925, indicated, clearly enough, that the record was in the clerk's office for filing on that date; and that it was then the clerk's duty to endorse it as filed on that date. The record, as it came to this court, contained specifications of error endorsed as filed on April 30, 1925, which, under the statute, are not required to be filed until within ten days after the record on appeal is prepared and filed.

The fact that after the endorsement of the true date of filing, which had been omitted, May 1, 1925, and the correction of the certificate so as to make it strictly conform to the requirements of the statute, the clerk again endorsed it as filed on August 25, and that the corrected certificate was dated August 26, 1925, should not be held, we think, to overcome the effect of the filing endorsement of May 1, or as rendering the same invalid. That later date of filing is to be taken as the filing after correction. The new and corrected certificate, though dated August 25, contains the statement that the record was filed in the clerk's office on May 1, 1925. The record having been prepared by the clerk within proper time, and in the clerk's office for filing, as shown by the record facts aforesaid, we see no reason why it might not thereafter, upon due return to the clerk's office, be endorsed as filed on the date when it should have been so endorsed, and the certificate corrected to comply in form specifically with the requirements of the statute. Clearly the appellant was not at fault in either of those respects. The record was there, concededly containing all of the necessary material, the only defect being the clerk's omitting to endorse thereon the date of filing and omitting to state specifically in her authentication certificate that "the record is true and correct." The motion will, therefore, be denied.

The charge contained in the information is that on January 25, 1925, in the county of Natrona, in this state, the defendant, being then and there the agent and employee of A. J. Brainard, for the sale of one carload of apples, then and there belonging to said Brainard, and to the possession of which the said Brainard was then and there entitled, did then and there receive and take into his possession from the sale of said carload of apples, by virtue of his said employment, and while so then and there employed as aforesaid, the following property, to-wit: "Lawful money of the United States in the sum of $ 1075.00, to the possession and ownership of which the said A. J. Brainard was then and there lawfully entitled and did then and there feloniously, unlawfully, and fraudulently take, purloin, secrete and appropriate to his own use the money aforesaid" contrary to the form of the statute in such case made and provided, etc. The statute provisions upon which the prosecution was based are found in section 7134, Compiled Statutes 1920, reading as follows:

"Every officer, agent, attorney, clerk, servant or employee of any person who, having access to, control or possession of any money, article or thing of value, to the possession of which his or her employer is entitled, shall, while in such employment, take, purloin, secrete, or in any way whatever appropriate to his own use, or to the use of others, any money, coin, bills, notes, credits, choses in action, or other property or article of value, belonging to or deposited with, or...