State v. Campbell

• Decision Date: 19 November 1930
• Docket Number: 1627
• Citation: 42 Wyo. 252,293 P. 365
• Parties: STATE v. CAMPBELL
• Court: Wyoming Supreme Court

293 P. 365

42 Wyo. 252

STATE v. CAMPBELL

No. 1627

Supreme Court of Wyoming

November 19, 1930

APPEAL from District Court, Albany County; SAM M. THOMPSON, Judge.

Otto D Campbell was convicted of embezzlement and he appeals.

Affirmed.

For the appellant there was a brief by J. R. Sullivan, S. C. Downey and S. G. Parker, all of Laramie, and oral argument by Mr Sullivan and by Mr. Parker.

The court erred in receiving in evidence the reports, checks and funds of the State Examiner, which tended to prove twelve separate offenses. The court erred in denying defendant's motion to require the prosecution to elect upon which charge defendant should be tried. District Court clerks are required to collect fees in advance. 1160 C. S., and pay over fees coming into their hands. 7131 C. S. Was a legal demand prerequisite, to a prosecution for embezzlement? It was the duty of the County Treasurer to collect the fees. 1441 C. S. Defendant was required to make and file monthly reports, and pay over fees. 1160 C. S. If a demand is required, and three demands were made, and not complied with, there would be three separate offenses. On the other hand, if no demand was necessary, but two separate offenses were committed defendant's motion to elect should have been sustained. Edelhoff v. State, 5 Wyo. 19, 31; Stockwell v. State, 27 O. S. 563; Bainbridge v. State, 30 O. S. 264; Myer v. The State, 4 Ohio Cir. Ct. 573; Ex Parte Ricord, 11 Nev. 287; People v. Hatch, 13 Cal. A. 521; 109 P. 1097; Trask v. People, 35 Colo. 83; 83 P. 1010. The Edelhoff case is cited with approval in People v. Hatch, (Calif.) 109 P. 1097. The court erred in excluding defendant's exhibits "A" to "T" being checks on hand held by defendant at the time information was filed. Nichols Ev. Vol. II, 1920; U. S. v. Camp, (Ida.) 10 P. 226. Embezzlement was not proven. 20 C. J. 413-14; High v. State, (Okla.) 28 L. R. A. (N. S.) 162, 9 R. C. L. 1296. The verdict is not supported by the evidence and is contrary to law.

For the respondent there was a brief by Wm. O. Wilson, Attorney General and James A. Greenwood, Deputy Attorney General, both of Cheyenne, and oral argument by Mr. Greenwood.

Errors alleged but not argued in defendant's brief are waived. Riordan v. Horton, 16 Wyo. 376; C. B. & Q. R. R. Co. v. Lampman, 18 Wyo. 118. The stringency of the statute, relating to embezzlement, is relaxed where public officials are charged with embezzlement of public funds. State of Nevada v. Carrick, 16 Nev. Rep. p. 124; State v. Munch, 22 Minn. Rep. 73; Willis v. State, 134 Ala. 429, 33 So. 226; The People v. McKinney, 10 Mich. 89-90; Heilman v. State, 189 N.W. 304; State v. Noland, 19 S.W. 722; Commonwealth v. Butterick, 100 Mass. 6; Robinson v. State, 33 S.E. 57; Calkins v. State, 98 Am. Dec. 159; State v. Dawe, 177 P. 393. The Edelhoff case is cited with approval in State v. Nolan, supra. The present case differs from the Edelhoff case. That case is commented upon in State v. Dawe, 177 P. 393; where the distinction which we contend for was made. The evidence clearly established every element of the offense charged. It was the duty of appellant to collect fees in advance and pay them to the county treasurer at the end of each month. 1160 C. S. Also to report collections to the county commissioners monthly, 3374 C. S. and 1441 C. S., likewise, fines and penalties. Section 5, Article VII of State Constitution. This he failed to do, in violation of 7131 C. S. Errors not shown to be prejudicial, will not affect the judgment. Bank v. Gray, 24 Wyo. 30; Pardee v. Kuster, 15 Wyo. 379. The figures constituting funds coming into appellant's possession, were stated in his reports. There could be no conversion without possession. Cronberg Bros. v. Johnson, 29 Wyo. 22. It was a continuous transaction, and not separate embezzlements. There was substantial evidence in support of each element of the charge, most of which is admitted in appellant's brief. Appellant's contention that no demand was necessary under the provisions of Sec. 7131, make unnecessary to discuss that point. The doctrine of election is not applicable to the evidence in this case.

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

OPINION

BLUME, Chief Justice.

The defendant herein was charged with embezzling the sum of $ 3256.24, as Clerk of the District Court of Albany County. He failed to report the income of his office for the period of April 1, 1928 to April 1, 1929, until the 4th day of April, 1929, and in the meantime also failed to pay such income into the office of the County Treasurer, as required by law. On April 3, 1929, however, he gave to the County Treasurer twelve different checks, representing the income for the twelve preceding months, and on the next day filed in the office of the county clerk twelve different reports, showing the income of his office for each of the preceding twelve months respectively. The checks given by him, amounting to $ 3304.90, and corresponding to the amounts shown by the reports, were by the County Treasurer presented to the bank on April 3, 1929 and payment thereon was refused for want of funds. The testimony further shows that in the meantime, and as early as December, 1928, the Board of County Commissioners became uneasy about the failure of the defendant to report and directed the county clerk to make a demand on the defendant to do so. That demand was made as directed, and pursuant to the orders of the board of county commissioners, was repeated during the succeeding months, after the defendant continued in his failure to make reports. The evidence indicates that these demands for the reports implied or included a demand also for the payment of the money due into the office of the county treasurer, inasmuch as approval thereof would be withheld until such payment was made and inasmuch as, according to custom or otherwise, the reports included a certificate to the effect that such payment to the county treasurer had actually been made. Moreover, the demand for the money due from the clerk was also made by the county treasurer when the checks above mentioned were turned down by the bank. The defendant having failed to make the checks good, he was thereupon and upon April 27, 1929, charged with embezzlement as above stated, and after trial was duly convicted. From such conviction and the sentence thereon he has appealed to this court.

1. The sections of the statute applicable in this case are as follows:

Section 1160, Wyo. C. S. 1920, provides:

"All fees prescribed by statute for civil business, shall be collected in advance by the clerk of the District Court, and paid to the treasurer of the county at the end of each month, and such clerk shall be liable under his bond for the collection and payment of such fees."

Section 1441 provides:

"Every county clerk, clerk of the District Court, county and prosecuting attorney, sheriff, justice of the peace, constable, or other county or precinct officer by law elected or appointed, required or permitted to receive and pay over to the county treasurer any taxes, fines, fees, or other moneys whatsoever, shall, promptly at the close of each month, pay the same to the county treasurer, taking his official receipt therefor. Each such county or precinct officer shall also prepare a monthly statement of all such moneys so received by him, showing the sources of said receipts, and file the same with the county clerk for presentation to the board of the county commissioners."

Section 3374 provides:

"Every magistrate or other officer to whom any fines imposed under general laws of the state shall be paid for the use of the county, shall, at each regular meeting of the board of county commissioners, make a report of the total amount so collected, and all fines so collected shall be paid into the county treasury for the credit of the public school fund of the county, within thirty days after collection thereof."

The defendant was charged with embezzlement under Section 7131, Wyo. C. S. 1920, which, so far as applicable here, provides as follows:

"Any * * * clerk of any court * * * who shall fraudulently fail or refuse * * * at any time during such term (of office), when legally required by the proper person or authority, to account for, deliver and pay over to such person as may be legally entitled to receive the same, all moneys, choses in action, or other property which may have come into his hands by virtue of his said office, shall be deemed guilty of embezzlement."

It is the contention of counsel for the defendant that under these provisions of the statutes, since a clerk of the District Court is required to make a report at the end of each month and pay the money received by him into the county treasury, a failure to do so at the end of each and every month is, without demand being made therefor, a separate crime, and that he cannot be charged, as was done in this case, with having embezzled a lump sum, collected during a number of months and not paid over as required by law; that, in other words, the defendant was charged herein with twelve different crimes and that the court erred in not sustaining the motion of the defendant to require the prosecuting attorney to elect on which of the separate crimes he relied for conviction. We are cited, as sustaining this contention, mainly to the case of Edelhoff v. State, 5 Wyo. 19, 36 P. 627. In that case the defendant, an employe of the Union Pacific Coal Company, was charged with having embezzled a lump sum of $ 208.40. This sum had been collected by the defendant from month to month for a period of eighteen months, during some of the time at the rate of $ 8.75 per month and during the remainder of the time at the rate of $ 8.25 per month. The court held that the evidence...