State v. Cotton
| Decision Date | 24 September 1948 |
| Docket Number | 47075. |
| Parties | STATE v. COTTON. |
| Court | Iowa Supreme Court |
[Copyrighted Material Omitted]
Herrick Sloan & Langdon, of Des Moines, for appellant.
Robert L. Larson, Atty. Gen., Don Hise, First Asst. Atty. Gen., and Carroll O. Switzer, County Atty. of Polk County, of Des Moines, for appellee.
The dissenting opinion of the writer having received the concurrence of a majority of the court has become the opinion of the court.
On December 31, 1946, the Polk County Grand Jury jointly indicted the defendant, and Elmer G. Croft, and H. H. Thompson, and accused them of obtaining money by false pretenses from said county through the issuance of its warrant for the sum of $1,285.20. While the accused were indicted as principals under section 688.1, Code 1946, it is the theory of the state that Croft was the principal actor and by his false pretenses directly procured the said warrant and the money paid thereon, and that the defendant, Cotton, aided and abetted Croft in the wrongful procurement.
All of the accused were granted separate trials. Croft was tried first. He was convicted, sentenced, and committed to the penitentiary. He had previously served time for the conviction of a felony. The trial of the defendant began on the 17th of March, 1947.
Defendant took office as a member of the Polk County Board of Supervisors on January 2, 1941, and remained such until December 31, 1946. On the death of the chairman of the Board in October, 1942, defendant became vice chairman until his selection as chairman in January following. He was thereafter annually selected by the Board as its chairman, and so served during his continuance in office. At the time of the trial he was 64 years old, married and the father of two married daughters. He had been active in responsible business positions and activities in Des Moines for many years prior to becoming county supervisor. Numerous reputable witnesses testified to his good repute in the community for honesty and fair dealing.
The Board of Supervisors consisted of one member from each of the five districts in the county. When defendant became chairman the members of the Board were B. B. Dewey, R. J. Hild, Charles Elson, A. C. Hitz and defendant. Later Charles E. Parmenter succeeded Hitz.
The defendant was chairman of the Polk County Board of Social Welfare during the time that he was supervisor. Mrs. Northup, and supervisors Dewey and Elson were also members in 1945 and 1946. In addition to the general duties of the supervisors each member was assigned a separate department for his particular attention. The Social Welfare Department was assigned to the defendant.
One of the committees of the Board of Supervisors was the 'Purchasing and Building Committee' consisting of three members. In 1945, defendant was its chairman, and Hitz, its vice chairman. In 1946 defendant was chairman and Elson was vice chairman. Supervisor Dewey was a witness for the state. He testified that defendant, as its chairman, never called a meeting of the purchasing committee in 1945 or 1946. In truth and in fact every meeting of the Board of Supervisors--and they were frequent--was a meeting of that committee. By resolution in each of those years every member of the Board was a member of each and every committee. For a great many years, by custom and practice, and perhaps by resolution, any three members of the Board were an auditing committee authorized to pass upon and approve any claim presented to them at any time.
According to Mr. Linstrum, County Auditor since January 3, 1939, and in the office since June 1, 1918, it had been the custom, 'for many, many years * * * as long as he knew anything about it * * * back to 1920', that on claims where three members of the Board had by their signatures certified that they had audited a claim and recommended its payment, the claimant could at once, and without an allowance by the Board in session, go to the County Auditor and get a warrant for his claim, which he could promptly cash. As shown by the testimony, 'the reason for that is that when three of the members have signed their names on the back of the claims, it is known that their vote will be for the approval of the claim.'
The regular meetings of the Board, the record shows, were about the first and the middle of the month. All claims filed were then brought to the Board meeting from the Auditor's office. Because of these old customs roll calls on claims were superfluous. The recommendation of the Auditing Committee took the place of a roll call. As testified by the Auditor:
There is no evidence in this record that the defendant initiated any of these practices or customs.
H. H. Thompson, one of the accused had been in the employ of the Social Welfare Department for over twelve years. During the later years he was Director of Social Welfare and Overseer of the Poor. F. J. Moeckly handled accounting for the Welfare Department for about five years until he left December 31, 1944. L. J. Huss had been with the Welfare Department for over fourteen years. He was in the Accounting Department. When the statement or invoice of any claim came to the Welfare Department, he audited it by checking or making the computations and adding the sales tax. He then filled out the printed blank requisition with the data of the claim, directed to the purchasing committee of the Board of Supervisors, stapled the invoice of the claim and the requisition to a printed blank back, and sent these attached papers to the office of George F. Greenlee, who, until his death in May 1946, signed all requisitions that were required on the purchases or bills that were submitted to the supervisors for approval. On the inside of the above-mentioned printed back was the affidavit of the claimant that the account was just and true and unpaid. After the requisition had been signed by Greenlee and Thompson it was returned to Huss for delivery to the claimant or to be messaged to the County Auditor's office or to the supervisors.
Elmer G. Croft, the other accused, was an automobile mechanic who for eight years at 701 Cherry Street, Des Moines under the name 'Modern Motor Service' operated a public garage and motor-service establishment. That had been his business for over 25 years. Since 1934 he had the exclusive care of the motor vehicles used by the Social Welfare Department. It was his duty to keep them in running order, to repair them and furnish equipment for them. He kept them supplied with gas and oil, and furnished them storage. During these years he had a free hand in these matters--too free. He serviced the motor vehicles for the Polk County Sheriff in 1945 or 1946--seven or eight cars, and for a time the cars of the Road Patrol--25 or 30 of them.
For a number of years and down through the year 1942, the automobile requirements of the Welfare Department had been financed or furnished by the Community Chest. In January and February 1943 by turning in the used vehicles and by money from the Community Chest funds, five new Chevrolet sedans, one Chevrolet coupe and a Chevrolet panel truck became the property of the Social Welfare Department. Croft housed and serviced these cars and sent statements of his charges to the Welfare Department where they were handled as above noted. These cars had hard service. Most of them were used day and night. With the exception of the car used by Cotton in the performance of his services in the Welfare Dept, all the cars were driven by whomsoever in the department had need for them. They were used in public service other than welfare service. The mileage on these cars on December 18, 1946, was: Lic. No. 77-15377 (Cotton's car), 31,037 miles; No. 77-15720, 43,143 miles; No. 77-16297, 84,936 miles; No. 77-2896 (panel truck), 32,987 miles; No. 77-19411, 94,723 miles; No. 77-19248, 94,327 miles; No. 77-20129, 89,097 miles.
The claim on which the charge in the indictment was based came to the Welfare Department on March 15, 1946. How it came there is not clear. The employees there had no recollection. It would be remarkable if they had. In Croft's own trial he testified that he mailed it to the department. In this trial he testified that he personally took it to Mr. Thompson, who after telephoning Cotton 'what the bill was, and what it was for and the amount of it', signed the requisition. Thompson, who was a witness for both the state and the defendant, as the latter's witness, denied the testimony of Croft in its entirety. Thompson testified that this claim apparently came through the department in the regular routine, through Huss, Greenlee and to himself. He signed the requisition in two places. He denied that he had any communication with Cotton about this claim, Exhibit '2', on which the indictment is based, or about Exhibits '59', '60' or '61', which Croft testified he discussed with Thompson at a time when the latter discussed the matter with Cotton, by telephone.
Exhibit '2' consists of two pieces of paper and the back to which they were fastened. The bottom sheet is claim No. 2315 of the 'Modern Motor Service', an invoice dated 3/15/46, in Croft's handwriting describing equipment for 'All Cars', that is the seven welfare cars as follows:
'7 New complete Chevrolet motors at $185 each $1295.00
7 New complete Chevrolet transmissions at $55 each 385.00
less 25% or $420 and plus $25.20 sales tax--total $1285.20'
The middle sheet is the printed...
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