State v. Cahill
| Decision Date | 25 January 1956 |
| Citation | 208 Or. 538,293 P.2d 169 |
| Parties | STATE of Oregon, Respondent, v. Otto W. CAHILL, Appellant. |
| Court | Oregon Supreme Court |
Harry G. Hoy, Oceanlake, for appellant. With him on the brief was R. Richard Anderson, Newport.
William T. Hollen, Sp. Deputy Dist. Atty., Newport, for respondent. With him on the brief were Robert Y. Thornton, Atty. Gen., Walter W. Foster, Dist. Atty., Dallas, and T. R. Adams, Sp. Deputy Dist. Atty., Taft.
Before WARNER, C. J., and TOOZE, ROSSMAN, LUSK, BRAND and LATOURETTE, Justices.
The defendant Otto W. Cahill was indicted by the grand jury of Lincoln county for the crime of conversion of public funds in violation of O.C.L.A., § 23-525 Oregon Laws 1941, ch. 371, p. 639. (See ORS 165.015.) The indictment alleges that
'The said Otto W. Cahill on the 1st day of February, 1954, in the said County of Lincoln and State of Oregon, then and there being, did then and there have in his possession and under his control a certain sum of money, to-wit, the sum of $750.00, which said sum of money was then and there the property of the Taft-Nelscott-Delake Water District, a municipal corporation of Oregon, and that he did then and there feloniously and fraudulently steal, make away with and convert to his own use the said sum of $750.00, and did then and there at said time and place wilfully and feloniously neglect and refuse to pay over and deliver the said sum of $750.00 as required by law and did then and there at said time and place wilfully and feloniously fail and refuse to pay over said sum of money then lawfully demanded so to do by said Taft-Nelscott-Delake Water District, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.'
The case was transferred to Polk county for trial. Defendant was found guilty by the jury, and from the ensuing sentence he now appeals.
Cahill was one of the commissioners, and secretary, of the Taft-Nelscott-Delake Water District, a public corporation. It is admitted that he received a check for $750 drawn on the District funds, which was delivered to him pursuant to a resolution of the Board of Commissioners dated June 8, 1951. Defendant denies that he converted the money and claims that he returned it to John D. Naylor, the then treasurer of the Water District, on January 21, 1954. He testified that the money was returned in cash composed of $50 bills. Naylor died on January 27, 1954. The Water District brought an action against Cahill to recover the money. His deposition taken in that action is in evidence.
Cahill takes the position that what he did with the money is unimportant. He rests his defense upon the claim that he returned the money, and he supports that claim by asserting that Naylor, who is silenced by death, executed a receipt acknowledging the return of the money. The state contends that the purported signature of Naylor is a forgery.
In general, the trial judge gave a fine example of intelligent and impartial conduct of a criminal case. He did, however, commit one error. On this we are all agreed. The facts are simple. The instrument commonly described as the 'questioned document' was the receipt for $750 on which Naylor's name appears. The question is whether the signature was forged or genuine. One document was received in evidence bearing the true signature of Naylor. This was Exhibit 31, a photostatic copy of a portion of the budget report of the District, bearing the signatures of both Naylor and Cahill. It was admittedly genuine. Cahill had signed a receipt acknowledging the return to him of 'a photostatic copy of the budget report * * * showing signatures of the commissioners * * *' signed 'Otto W. Cahill'.
In addition to Exhibit 31, the court received in evidence, over defendant's objection, nine checks of the Water District on which appeared the signature of John D. Naylor, as treasurer. The undisputed testimony was that the signatures were genuine. A witness without contradiction testified that he saw Naylor sign them. The checks had all been cleared through the bank, but there was no evidence that the defendant had seen them. They had not been 'admitted or treated as genuine' by Cahill. They were merely proven to be genuine by others. The statutes provide:
'The handwriting of a person may be shown by anyone who believes it to be his, and who have seen him write, or has seen writing purporting to have been his, upon which he has acted or been charged, and who has acquired a knowledge of his handwriting.' ORS 42.060.
'Evidence respecting the handwriting may also be given by a comparison made by a witness skilled in those matters, or the jury, with writings admitted or treated as genuine by the party against whom the evidence is offered.' ORS 42.070.
It is argued with some force that the nine checks were admissible for comparison purposes under ORS 42.060, and that ORS 42.070 was an additional permissive provision, 'Evidence * * * may also be given * * * .' (Italics ours.)
Our earlier decisions by eminent judges foreclose consideration of this argument of the prosecution. Munkers v. Farmers' Ins. Co., 30 Or. 211, 46 P. 850; State v. Tice, 30 Or. 457, 48 P. 367.
It follows that a signature acknowledged by the defendant to be genuine is admissible for comparison by experts with the questioned document, but signatures proven to be genuine but not 'admitted or treated as genuine' are not admissible for such purpose. Whether this statutory restriction is wise is not for us to say. The statute is valid and violation of it was error. The legislative purpose in enacting the statute is fairly obvious. The receipt of signatures claimed to be genuine for comparison with a signature claimed to be false, might lead to an almost endless excursion into collateral issues. The jury would first have to resolve every contested question as to the genuineness of the signatures offered for comparison before it could safely use them for comparison with the signature on the questioned document. Signatures conclusively proven to be genuine are as relevant and as significant for purposes of comparison, as signatures 'admitted or treated as genuine' by the defendant.
The use of the nine checks for comparison was error, not because they were not genuine, and not because they were without probative value, but simply because they were a type of evidence forbidden by the statute on the grounds of extrinsic policy--the avoidance of collateral issues. In this case we would say that genuineness of the nine checks was conclusively established, but not in the manner required by statute. Error was committed but the erroneous use of the inadmissible checks by the experts tended strongly to reduce the risk of mistake on their part when they pronounced the signature on the receipt to be a forgery, after comparing it with the admitted signature.
The constitution of this state provides that either party may have attached to the bill of exceptions 'the whole testimony, the instructions of the court to the jury, and any other matter material to the decision of the appeal.' It then provides:
Constitution of Oregon, Art. VII, § 3.
The only serious question in this case is whether we should invoke Article VII, § 3 and affirm the judgment 'notwithstanding any error committed during the trial', or should reverse the judgment and remand the case for a new trial.
Attention is first directed to the fact that this defendant was not indicted for forgery. He was indicted and tried on the charge that he feloniously and fraudulently converted to his own use $750 of public funds which were in his possession. The question is, did he convert the money?
The issue of forgery is neither the sole nor principal one in the case. The issue is criminal conversion, on which, to be sure, the question of forgery was material. Though there was weighty evidence on other issues, the question of forgery seems to have absorbed the attention of counsel and court.
The narrative begins with June 8, 1951. Defendant Cahill was a member of the Board of Commissioners of the Taft-Nelscott-Delake Water District, hereafter called the Water District. He was also its secretary. The minutes of the meeting of the Board on June 8, 1951 are signed by Cahill as secretary. They contain the following recital:
'The Secretary reported he had been advised that several Federal Departments would soon have available for purchase by disabled veterans and other individuals, numerous items required by the Water District, and requested that $750.00 be authorized for such purpose, as a deposit of that amount would tie up anything required.
'By unanimous consent the amount of $750.00 was authorized to be transferred to the personal account of the Secretary for the purchase of material and equipment in the event inspection of such items determines that the District will benefit from such purchase.'
The important items are (1) he was advised by several Federal Departments (2) items would soon be available for purchase (3) by disabled veterans;...
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