State v. Berg

• Decision Date: 25 June 1925
• Docket Number: 36676
• Citation: 204 N.W. 441,200 Iowa 627
• Parties: STATE OF IOWA, Appellee, v. FRED BERG, Appellant
• Court: Iowa Supreme Court

204 N.W. 441

200 Iowa 627

STATE OF IOWA, Appellee, v. FRED BERG, Appellant

No. 36676

Supreme Court of Iowa, Des Moines

June 25, 1925

OPINION ON REHEARING OCTOBER 2, 1925.

Appeal from Polk District Court.--W. G. BONNER, Judge.

THE defendant was convicted of the crime of embezzlement by a public officer, and appeals.

Reversed.

Lappen & Carlson and Faa O. Ross, for appellant.

Ben J Gibson, Attorney-general, Maxwell A. O'Brien, Assistant Attorney-general, and Vernon R. Seeburger, County Attorney for appellee.

VERMILION, J. FAVILLE, C. J., and STEVENS and DE GRAFF, JJ., concur.

OPINION

VERMILION, J.

The appellant was put on trial upon an indictment that charged, in substance, that he was, during the three years preceding the finding of the indictment, bailiff of the municipal court of the city of Des Moines, and, as such officer, charged with the collection, safe-keeping, transfer, and disbursement of public moneys; and that, by reason and by virtue of his office, by a series of acts during such time, he received, obtained, secured, collected, and had in his possession, care, custody, and control, as such officer, the sum of $ 500.86 of the money of such city; and that he willfully, unlawfully, and feloniously embezzled and converted to his own use and benefit the money of such city in the sum of $ 500.86. He was convicted of the embezzlement of $ 400.

The evidence on behalf of the State tended to establish the following facts: Fees were collected by the appellant, as bailiff of the municipal court, directly from litigants and their attorneys. In some cases, fees for services of the bailiff were paid to the clerk of the municipal court, and by him paid or turned over to the appellant. The appellant kept a cashbook and fee book. Fees so collected or received by him, during the time covered by the indictment, to the amount of $ 434.05 were not entered on these books. The appellant made monthly payments of fees collected or received by him, to the city treasurer. These monthly payments were made in accordance with his cashbook and fee book; and during the time covered by the indictment and the testimony, fees collected or received by appellant to the amount of $ 434.05 were not paid to the city treasurer. This aggregate amount was made up of various small items of fees collected at various times in a large number of cases in the municipal court.

The indictment does not allege that any demand was made by the city treasurer for these fees, either singly or in the aggregate, or monthly, or that the city suffered a loss in any amount. The proof does not show any demand on the part of the city treasurer, or any failure of the appellant to account for these amounts, except the failure to pay to the city treasurer, on or before the 10th of the month, certain fees collected during the preceding month. It appears that appellant tendered to the city treasurer a check, and offered to show that it was an offer of payment on his part of any amount that had not been paid over to the treasurer. No objection was made to the amount or form of the tender, but it was refused. The date of this tender does not appear in the abstract, but we understand it to have been before the indictment was returned. It was stipulated on the trial that "the total amount of claimed warrant and subpoena mileage taxed to Fred Berg and disclosed by said docket [the criminal court docket of the municipal court] is in excess of $ 600."

We do not find it necessary to consider all of the questions presented by appellant. The ultimate question in the case is whether the indictment and this record will support the conviction for embezzlement.

I. Section 1 of Chapter 226 of the Acts of the Thirty-seventh General Assembly, as amended by Chapter 42 of the Acts of the Thirty-eighth General Assembly (Compiled Code, Section 6868), provided, in part, as follows:

"All fees, fines, forfeitures, costs and expense paid to the clerk and bailiff [of municipal courts] shall be paid to the city treasurer on or before the 10th day of each succeeding month; provided that the amounts allowed the bailiff by law for mileage and for necessary and actual expenses paid by him may be retained by him in addition to his salary."

See Section 10671, Code of 1924.

Section 4840 of the Code of 1897, under which the indictment was found, is in part as follows:

"If any state, county, township, school or municipal officer, or officer of any state institution, or other public officer within the state charged with the collection, safe-keeping, transfer or disbursement of public money or property, fails or refuses to keep the same in any place of custody or deposit that may be provided by law for keeping such money or property until the same is withdrawn therefrom as authorized by law, or keeps or deposits such money or property in any other place than in such place of custody or deposit, or unlawfully converts to his own use in any way whatever, or uses by way of investment in any kind of property, or loans without the authority of law, any portion of the public money intrusted to him for collection, safe-keeping, transfer or disbursement, or converts to his own use any money or property that may come into his hands by virtue of his office, he shall be guilty of embezzlement to the amount of so much of said money or the value of so much of said property as is thus taken, converted, invested, used, loaned or unaccounted for, and shall be imprisoned in the penitentiary not exceeding ten years, and fined in a sum equal to the amount of money embezzled or the value of such property converted, and shall be forever after disqualified from holding any office under the laws of the state."

Under a statute (Section 4243, Revision of 1860), in effect the same, so far as any question here involved is concerned, it was held in State v. Brandt, 41 Iowa 593, after much discussion and consideration, and reiterated on rehearing, that the word "or," in the phrase "every such act is an embezzlement of so much of said money as is thus taken, converted, invested, used, loaned, or unaccounted for," must be construed as "and," and that any act of loaning or converting the public funds was na embezzlement of only so much thereof as was unaccounted for; that there must be a loss to the state or municipality, to constitute the crime of embezzlement by a public officer. In State v. Parsons, 54 Iowa 405, 6 N.W. 579, construing Section 3908 of the Code of 1873, which was substantially the same as the above quoted portion of Section 4840 of the Code of 1897, the Brandt case was followed.

In State v. King, 81 Iowa 587, 47 N.W. 775, the defendant, a county treasurer, on demand produced the money which should have been in his custody, but insisted that it be immediately returned to him. No settlement was made with him, and on his removal from office he paid over to his successor only a small amount, and was defaulter to the amount of over $ 20,000, which was lost to the county; and a conviction was affirmed.

The indictment in State v. McKinney, 130 Iowa 370, 106 N.W. 931, charged a county treasurer with embezzlement, and alleged a demand by the county and a failure to account. The statute had been amended by the Acts of the Twenty-sixth General Assembly, Chapter 67, by the addition of the following:

"And any such officer who shall receive any money belonging to the state, county, township, school or municipality or state institution of which he is an officer, shall be deemed to have received the same by virtue of his office, and in case he fails or neglects to account therefor upon demand of the person entitled thereto, he shall be deemed guilty of embezzlement, and shall be punished as above provided."

This provision is a part of Section 4840 of the Code of 1897. It was held in the McKinney case, which was an appeal by the State from an order sustaining a demurrer to the indictment, that the addition to the statute created a new or additional ground on which an indictment might be sustained,--a new ground for the charge of embezzlement.

State v. Hoffman, 134 Iowa 587, 112 N.W. 103, was an indictment against a constable for embezzling money belonging to private individuals, which had come into his hands by virtue of his office. It was held that what was said in the last sentence of Section 4840, following State v. McKinney, supra, created a distinct form of the crime of embezzlement, and that the provision...