State v. Czizek

• Decision Date: 10 February 1888
• Citation: 36 N.W. 457,38 Minn. 192
• Parties: STATE v CZIZEK.
• Court: Minnesota Supreme Court

38 Minn. 192

36 N.W. 457

STATEvCZIZEK.

Supreme Court of Minnesota.

February 10, 1888.

(Syllabus by the Court.)

Under Gen. St. 1878, c. 95, § 36, a city treasurer who improperly neglects or refuses to pay over moneys of the city intrusted to him in his official capacity, according to the provisions of law, is guilty of embezzlement.

Conviction sustained, where it was shown by evidence, undisputed and unexplained, that the defendant had received money belonging to the city which he had not paid out in discharging claims against the city or otherwise in his official capacity, nor paid over to his successor, on the lawful demand of the latter, and which remained wholly unaccounted for at the trial.

In such case, if the default is clearly the result of negligence and mismanagement of his trust, it is immaterial that no actual or deliberate purpose to defraud the city is shown.

Appeal from district court, Clay county; COLLINS, Judge.

Indictment for embezzlement of city funds. Defendant was convicted, and appeals.

O. Mosness and J. E. Greene, for appellant.

W. B. Douglass and Moses E. Clapp, Atty. Gen., for the State.

VANDERBURGH, J.

The defendant was treasurer of the city of Moorhead, in this state, from the twentieth day of March, 1883, to the fifth day of January, 1884, when he resigned the office. He was then a defaulter to the city, and was subsequently indicted, tried, and convicted of the crime of embezzlement under Gen. St. 1878, c. 95, § 36. By this section, if a city or county treasurer improperly neglects or refuses to pay over any moneys of the city or county intrusted to him in his official capacity, when lawfully required so to do, he is guilty of embezzlement. State v Munch, 22 Minn. 72; also State v. Ring, 29 Minn. 85, 11 N. W. Rep. 233. That the defendant received moneys belonging to the city as such treasurer, and which he neglected to pay over to his successor upon his demand, and which he has failed to account for to the city, is indisputable upon the evidence returned, and is not seriously questioned by his counsel. The only questions in the case which seems to require examination are (1) in respect to the amount of the defalcation, and (2) whether there were any errors of law occurring at the trial which were prejudicial to the defendant's rights.

1. The evidence shows that monthly reports were made by him to the city council of the amount of corporate funds in his hands as treasurer, from which it appears that on the thirtieth day of April, 1883, there was a balance in the treasury of $3,459.64; on June 30, 1883, the sum of $22,115.84; and on October 31, 1883, the sum of $14,015.28; and these several statements were signed by defendant as city treasurer. The evidence also shows that the defendant, while city treasurer, kept his personal account with the First National Bank of Moorhead, and that he kept no separate account there as treasurer. That in the latter part of May he drew a draft on Preston, Kean & Co., bankers of Chicago, for $20,330, being proceeds of bonds of the city for bridge purposes, and left the same with the bank for collection; that the same was duly forwarded and collected by the bank, and the amount thereof placed to the credit of defendant, in his account. The officers of the bank understood that it was collected for the city, but the defendant had notice that it was credited in his account, as he kept but one, and it is admitted upon the record that the deposit book used by him in making deposits showed this entry, and also showed a balance in his favor, June 1st, of $20,458.22, and that the same was balanced July 5, August 1, September 2, October 1, November 2, December 5, 1883, and January 5, 1884; and that the balance to his credit in the bank on the last date was $235.60. Checks were drawn by him indiscriminately, it seems, upon the bank against his account for his own use and for city purposes. Defendant kept separate books of account with the city. These books disclose a large balance due the city amounting to $14,316 on the fifth day of January, 1884. It is admitted, however, that $2,500 of this has been paid by the defendant on account of bridges, and that he turned over also the amount of his salary, $400, to be credited on his account.

Again the questions of fact litigated by the defendant relate almost exclusively to the disposition made of the bridge fund of $20,330, placed on deposit in the bank. But apart from this, the books of his office show the following amounts standing to the credit of the city, and unaccounted for, viz.:

+-------------------------------------------------+
                ¦General fund,               ¦$4,345 00¦          ¦
                +----------------------------+---------+----------¦
                ¦Interest fund,              ¦92 61    ¦          ¦
                +----------------------------+---------+----------¦
                ¦Sinking fund,               ¦112 55   ¦          ¦
                +----------------------------+---------+----------¦
                ¦Sidewalk fund,

...