State v. Christiansen

• Decision Date: 14 October 1939
• Docket Number: 6090
• Citation: 94 P.2d 472,98 Utah 278
• Court: Utah Supreme Court
• Parties: STATE v. CHRISTIANSEN

94 P.2d 472

98 Utah 278

STATE v. CHRISTIANSEN

No. 6090

Supreme Court of Utah

October 14, 1939

Rehearing Denied, March 26, 1940.

Appeal from District Court, Sixth District, Sevier County; H. D Hayes, Judge.

Ernest C. Christiansen was convicted of misusing and embezzling public funds, and he appeals.

Affirmed.

N. J Bates and Vernon Erickson, both of Richfield, for appellant.

Joseph Chez, Atty. Gen., and Zelph S. Calder, Asst. Atty. Gen., for the State.

WOLFE, Justice. MOFFAT, C. J., and LARSON, McDONOUGH, and PRATT, JJ., concur.

OPINION

WOLFE, Justice.

Ernest C. Christiansen was charged with the crime of "misusing and embezzling public funds", the information reading as follows:

"That the said Ernest C. Christiansen, on the 16th day of March, A. D. 1934, at Richfield, County of Sevier, State of Utah, was the duly elected, qualified and acting County Treasurer of Sevier County, State of Utah, and then and there, by virtue of his employment as such Treasurer, there came into the care, custody, and control of him, the said Ernest C. Christiansen, certain public monies amounting to $ 375.-90, which were public monies of said Sevier County, State of Utah, and were monies the said Ernest C. Christiansen was then and there charged with the duty of collecting and receiving as such County Treasurer for and on behalf of said Sevier County, State of Utah, and he, the said Ernest C. Christiansen, after the said payments had come into his possession, care, custody and control as aforesaid, did then and there wilfully, unlawfully and fraudulently convert, embezzle and appropriate the same to his own use, contrary to his trust as such County Treasurer, contrary to the form of the Statute in such cases made and provided and against the peace and dignity of the State of Utah."

From a judgment of conviction defendant Christiansen appeals to this court. Numerous errors have been assigned, but the most important one has to do with the question of whether there was sufficient evidence for the court to submit the case to the jury. It is urged that there is "no evidence that justifies a conviction of the crime alleged or any other crime."

The State's case is based on the following facts: In November, 1933, approximately four months before the alleged embezzlement occurred, the State Land Office wrote to the Treasurer of Sevier County, appellant herein, to find out how much taxes were owing on a certain tract of land in Sevier County, known as the Allen Searle tract. This letter was returned to the Land Office with a note at the bottom signed by appellant to the effect that the County Commissioners had agreed to accept $ 375.90 in payment for the taxes on said property. The note then reads: "I trust that I may be in receipt of this amount at an early date." Five days later the State Land Office sent a letter addressed to "Ernest C. Christiansen, Sevier County Treasurer," stating, "We are enclosing herewith State Auditor's warrant No. 418696 in the sum of $ 375.90. * * * We kindly ask that you receipt the enclosed redemption memorandum and 1933 tax statements and return to this office." The Land Office received no reply to this communication, nor was any redemption receipt forwarded to it. Neither was any money ever credited on the assessment rolls to the payment of the taxes for which the warrant was issued.

On March 16, 1934, the date it is alleged that appellant embezzled $ 375.90 of public moneys, the state warrant was endorsed with the stamp of appellant as County Treasurer and deposited in the Richfield Commercial & Savings Bank, along with other money, the whole totaling $ 1,544.66. Immediately prior to that time there had been received in the County Treasurer's Office a total of $ 1,544.66, exclusive of the state warrant, which sum represented payments for thirty different items of taxes. Receipts had been issued for this amount of money covering the different items of payment. The deposit, therefore, of $ 1,544.66 (which included the state warrant) corresponded exactly with the amount of receipts issued (which did not include any receipt for the state warrant).

A record of the deposit was made up in the Office of the County Treasurer on the day of the deposit, part of said record being in the handwriting of a deputy in the office and part being in the handwriting of appellant. The part written by the deputy indicates the number of receipts issued and the total amount of each type. $ 919.71 was received for general redemptions, $ 594.95 for partial payments, and $ 30 for general receipts, making a total of $ 1,544.66. However, as stated above, none of these receipts pertained to the property for which the state warrant was issued, nor were any of them for the state warrant itself. The part of the record which is in the handwriting of the appellant shows the amount which was deposited in the bank and whether it was silver, currency, or checks. It indicates that of the total deposit of $ 1,544.66, $ .73 was in cash, $ 5 in currency, and $ 1,538.93 in checks. The deposit slip of the Richfield Commercial & Savings Bank is also made out in the handwriting of appellant and attached thereto is a piece of adding machine tape containing the items of deposit. Among them is the item of $ 375.90, represented by the state warrant. The total, however, registered by the adding machine on the slip is only $ 1,538.93. To that sum was added, in the handwriting of the appellant, the two sums, ".73" and "5.00" to make up a total of $ 1,544.66.

The deputy whose handwriting appears on the record of deposit in the County Treasurer's Office testified that she made up the amount of all the receipts that had been issued since the last deposit had been made and indicated the total on the deposit record. It was then the custom of appellant to complete the record by indicating the various items of money which had been received for these receipts and deposit that money, the total of which should correspond with the total amount of receipts issued. As heretofore stated, the amount of the deposit did correspond with the amount of the receipts issued, but the deposit included the state warrant, which was not included in the receipts. The deputy further testified that she followed the above procedure in the present instance and made up that part of the record of deposit which contains her handwriting before appellant filled out the other portion.

While appellant did not contradict any of the above evidence, yet he testified that he had no recollection of ever receiving the warrant, or of stamping his endorsement on it or depositing it in the bank.

The problem to be determined by this court is whether the above evidence is sufficient for the court to permit the case to go to the jury to determine the guilt or innocence of appellant herein. We think it is. Our statute, under which appellant is prosecuted, reads as follows (Section 103-26-59, R. S. U. 1933):

"Every officer of this state, or of any county, city, town, precinct or district of this state, and every other person charged with the receipt, safe-keeping, transfer or disbursement of public moneys, who either:

"(1) Without authority of law appropriates the same or any portion thereof to his own use, or to the use of another * * * is guilty of a felony."

Appellant urges that there was no evidence here to show that he had appropriated any money to his own use, or that he actually ever received or took any of the funds in his office; that it was just as likely that anyone else in the office had taken the funds as that he had. We cannot agree with this contention. The evidence shows that the state warrant was sent to appellant, addressed to him personally; that it remained in the office for several months before it was deposited even though deposits of other moneys received subsequent to the warrant were constantly being made; that when it was finally deposited it was deposited by appellant; that appellant had added the amount of the warrant, together with two small cash items, to the other items of deposit in order to make up a total of $ 1,544.66 which was necessary to balance the amount of receipts currently issued; and that the taxes for which the warrant was issued were never paid or credited in any way. The warrant was substituted for a like amount of current receipts. These funds which the state warrant replaced in the deposit are unaccounted for. They were not used to pay the taxes for which the warrant had been issued--the evidence for the state clearly shows that. And in order for appellant to successfully maintain that he did not convert those funds to his own use he must account for those funds in such a way as to disprove the state's case. Busby v. State, 51 Tex. Crim. 289, 103 S.W. 638, 645. The court there held:

"We hold the rule to be that, where a public officer is shown to have received money on account of his trust, it is incumbent on him to pay it over to the state in accordance with the obligation assumed by him. In Evans v. State, 40 Tex. Crim. 54, 48 S.W. 194, it was held that, where a party receives money or property to be disposed of in a particular manner, and it is! further shown that same was not so disposed of, it was then incumbent on such party to show that it was disposed of in some other manner not criminal; that, where exculpatory evidence of an important character is peculiarly within the knowledge of defendant, it is his duty to produce it. See Jackson v. State, 44 Tex. Crim. 259, 70 S.W. 760, 6 Tex. Ct. Rep. 153."

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