State v. Clark

• Decision Date: 26 June 1929
• Docket Number: 5257
• Citation: 278 P. 776,47 Idaho 750
• Parties: STATE, Respondent, v. PARLEY CLARK, Appellant
• Court: Idaho Supreme Court

278 P. 776

47 Idaho 750

STATE, Respondent, v. PARLEY CLARK, Appellant

No. 5257

Supreme Court of Idaho

June 26, 1929

CRIMINAL LAW-JURY-SUSTAINING CHALLENGE TO-BILL OF PARTICULARS-ADMISSION OF EXHIBITS NOT REFERRED TO-EMBEZZLEMENT-DEGREE OF PROOF-REASONABLE DOUBT-CORROBORATIVE FACTS-ACCOUNTS AND BOOKS OF ACCOUNT-EVIDENCE-EXPERT ACCOUNTANTS-CITY ORDINANCES-EVIDENCE OF.

1. A defendant is not entitled to any particular juror.

2. Court's allowing state's challenges of certain veniremen whom defendant claimed were qualified jurors held not prejudicial, where defendant did not show that jurors actually chosen were not in every way qualified.

3. Where there are records and numerous accounts consisting of many documents, books, entries, etc., person properly qualified either as expert or by reason of having made such accounts may testify regarding results of his examination.

4. Admitting exhibits not referred to in bill of particulars held not prejudicial, where one of affidavits considered as bill of particulars contained general statements which might have included subject matter of exhibits, even though not particularly mentioning them, and in view of fact that trial court has discretionary power in excluding evidence not referred to in bill of particulars.

5. In prosecution of city clerk for embezzlement, ordinances introduced in evidence having been adopted on previous dates there was prima facie showing that ordinances were in effect during period covered by information.

6. In prosecution of city clerk for embezzlement, where ordinances introduced in evidence were attested by defendant as ordinances of city and their dates and date of certificate showed that they were effective over period when defendant was in office, there was prima facie showing under C. S sec. 4063, that such ordinances were unrepealed and were valid and subsisting ordinances under secs. 3848, 3853-3858, 4063, 4064.

7. In prosecution of city clerk for embezzlement, admitting in evidence claims made by city on bonding companies which had furnished defendant with the bond held not error, where defendant had elicited information from state's witnesses that defendant had sought to restore part of money embezzled and in view of fact that defendant had virtually confessed to mayor and others.

8. In prosecution of city clerk for embezzlement, instruction that clerk was under duty to pay to city treasurer funds collected on day before last council meeting each month did not inferentially state defendant was guilty because of carrying over money from month to month.

9. Instruction that jury could base reasonable doubt upon fair deduction "of" all evidence in case, instead of "from" all evidence, held not prejudicially erroneous.

10. In prosecution of city clerk for embezzlement, instruction that in order to warrant conviction, state must prove beyond reasonable doubt a conversion which agent or officer under his employment had no right to make, did not instruct jury that defendant might be guilty if any employee had been guilty.

11. In embezzlement prosecution, instruction that state need not prove beyond reasonable doubt every collateral or corroborative fact or circumstance in case held not erroneous.

12. In embezzlement prosecution, refusing instruction that restitution could be considered as bearing on defendant's intent held not error, since C. S., sec. 8460, expressly provides that restitution only authorizes court to mitigate punishment and punishment is matter solely for court.

13. In prosecution of city clerk for embezzlement, instruction that judicial notice could be taken of fact that city in question was city of second class held not erroneous under C. S., sec. 3859.

14. In prosecution of city clerk for embezzlement, evidence held sufficient to sustain conviction.

APPEAL from the District Court of the Eleventh Judicial District, for Cassia County. Hon. William A. Babcock, Judge.

Defendant was convicted of embezzlement. Affirmed.

Affirmed.

Peterson, Baum & Clark and B. P. Howells, for Appellant.

"Challenges to jurors for cause are prescribed by statute and should be denied, unless cause is shown." (35 C. J. 404; People v. Wells, 100 Cal. 227, 34 P. 718; People v. Fredericks, 106 Cal. 557, 39 P. 944.)

"Opinions and conclusions of witnesses are not admissible." (22 C. J. 485.)

"No evidence should be received which presupposes that the party who offered it can obtain better evidence." (22 C. J. 974.)

Parol evidence is inadmissible in substitution for available written evidence and the contents of an accessible writing cannot be proved by parol. (22 C. J. 980; Fresno Canal etc. Co. v. Dunbar, 80 Cal. 530, 22 P. 275; Brown v. Griffith, 70 Cal. 14, 11 P. 500; Spottiswood v. Weir, 66 Cal. 525, 6 P. 381.)

Where a bill of particulars has been furnished by the state, the evidence offered by the state must fall within such bill. (Jordan v. Commonwealth, 225 U.S. 167, 32 S.Ct. 651, 56 L.Ed. 1038; State v. O'Neil, 24 Idaho 582, 135 P. 60; Rast v. State, 79 Fla. 772, 84 So. 683.)

Where there is doubt as to admissibility of evidence, the doubt should be resolved in favor of the defendant. (16 C. J. 857.)

W. D. Gillis, Attorney General, and Fred J. Babcock, Assistant Attorney General, for Respondent.

The furnishing of a bill of particulars is discretionary with the trial court. (State v. Rathbone, 8 Idaho 261, 67 P. 186; State v. O'Neil, 24 Idaho 582, 135 P. 60; Joyce on Indictments, secs. 320-322.)

An appeal from conviction cannot be predicated upon the sustaining of a challenge to a juror on his voir dire examination. (C. S., secs. 8927, 8930; Catron v. State, 52 Neb. 389, 72 N.W. 354; Leaptrot v. State, 51 Fla. 57, 40 So. 616; Collins v. People, 103 Ill. 21; Ochs v. People, 25 Ill.App. 379.)

Where the fact could be ascertained by the inspection of many documents and books containing numerous detailed statements, a qualified accountant who has perused the entire mass may testify as to the result of these inspections. (State v. Jester, 46 Idaho 561, 270 P. 417; People v. Wulff, 313 Ill. 286, 145 N.E. 108; Gurley v. State, 164 Ark. 397, 262 S.W. 636; Ritter v. State, 70 Ark. 472, 69 S.W. 262; State v. Ewert, 52 S.D. 619, 219 N.W. 817.)

GIVENS, J. Budge, C. J., and T. Bailey Lee, Wm. E. Lee and Varian, JJ., concur.

OPINION

GIVENS, J.

Appellant was found guilty of having as city clerk of the city of Burley embezzled from such city the sum of $ 5,869.72 as charged in the information filed against him. His first group of assignments is based on the action of the trial court in allowing the state's challenges of certain veniremen on the ground that they were qualified jurors and that the trial court improperly dismissed them.

A defendant is not entitled to any particular juror and even though these challenges should not have been allowed, defendant has not shown that the jurors actually chosen were not in every way qualified. No prejudice is shown. (State v. Hoagland, 39 Idaho 405, 228 P. 314; State v. Rodriguez, 23 N.M. 156, 167 P. 426, L. R. A. 1918A, 1016.)

Various amounts making up the total embezzlement consisted of the collection by defendant of charges against individuals in Burley for water and electricity furnished by the city. Defendant urges that there was no competent proof that the city owned the light and water facilities. There was ample evidence that the office of the city clerk collected these charges and that the defendant received them as charges for light and water service rendered and that they were paid by him to the city treasurer. The record shows these charges were received by the defendant as city funds and under the city ordinance he was charged with their receipt and distribution. (State v. Dawe, 31 Idaho 796, 177 P. 393.)

Defendant objected to certain questions asked of the clerks in his employ and of an expert accountant who had audited his accounts on the ground that the questions called for conclusions and were not the best evidence. Where there are records and numerous accounts consisting of many documents, books, entries, etc., a person properly qualified either as an expert or by reason of having made such accounts may testify as to the results of his examination. (Gurley v. State, 164 Ark. 397, 262 S.W. 636; People v. Wulff, 313 Ill. 286, 145 N.E. 108; State v. Ewert, 52 S.D. 619, 219 N.W. 817.)

The evidence clearly showed that records of the clerk's office were kept by the defendant or the clerks under his direction and control.

All records from which the witnesses testified with the exception of the records of the school district, were before the court and no demand was made by the defendant for the school records.

A bill of particulars was requested by the defendant and two affidavits were made by the prosecuting attorney which the court ordered should be considered as a bill of particulars. The defendant urges that these were insufficient and also that certain items, particularly Exhibits 166, 167, relating thereto, were admitted and that the bill of particulars did not refer to these items.

The first affidavit contained general statements which might have included the subject matter of these exhibits even though not particularly mentioning them. It will also be noticed that on first offering the exhibits the prosecuting attorney promised to connect them up and the court allowed them to stand. Later the court in connection with these exhibits admitted Exhibit 96 without objection and at that time no motion to strike Exhibits 166 and 167 was made. The court at the same time expressly sustained an objection to Exhibit 168. In view of the colloquy with regard to these exhibits extending through the testimony of the witnesses, Steen and Painter, the court...