State v. Daems

• Decision Date: 24 July 1934
• Docket Number: 7240.
• Citation: 37 P.2d 322,97 Mont. 486
• Parties: STATE v. DAEMS.
• Court: Montana Supreme Court

37 P.2d 322

97 Mont. 486

STATE v. DAEMS.

No. 7240.

Supreme Court of Montana

July 24, 1934

Rehearing Denied Nov. 13, 1934.

Appeal from District Court, Wheatland County, Fourteenth District William L. Ford, Judge.

L. R Daems was convicted of forgery, and he appeals.

Affirmed.

Norman R. Barncord, of Harlowton, and Belden & De Kalb, of Lewistown, for appellant.

Raymond T. Nagle, Atty. Gen., and Enor K. Matson, Asst. Atty. Gen for the State.

MATTHEWS Justice.

On October 23, 1933, a judgment of conviction of the crime of forgery was entered against L. R. Daems in the district court of Wheatland county; he has appealed from the judgment and from an order denying him a new trial.

The information on which Daems was tried is based upon a check issued by him against the funds of the James H. Duffey estate on October 24, 1928, at which time Daems was acting as attorney for the personal representatives of Duffey. The material facts developed at the trial are substantially as follows: James H. Duffey died at Harlowton on April 22, 1928, leaving a will in which he left his property to his brother Owen, who spells his name "Duffy," and the six grown children of decedent, share and share alike; he nominated Owen Duffy and Sidonia Barnes, a daughter then residing at Bozeman, "joint executors." The executors employed Daems to act for them. The will was admitted to probate; letters testamentary were issued to Duffy and Mrs. Barnes, who duly qualified on May 19, 1928. Appraisers were duly appointed and an inventory and appraisement executed. Notice to creditors was ordered and published, but neither the inventory nor affidavit of publication of notice to creditors was filed. The assets of the estate consisted of $166.17 in cash, a note for $4,000, which was appraised at $1,000 on the suggestion that the sum might be secured on a compromise, and certain other small notes which were found to be worthless. In addition to the foregoing, there were in the estate certain notes secured by a mortgage on a ranch which Duffey had theretofore sold to one J. P. Cooney, and which matured in July, 1928.

On qualifying, Owen Duffy signed a "signature card" at the bank in which James H. Duffey's small balance was carried, which card recites that he is the executor and Sidonia Barns the executrix of the estate, and that "either or both to sign," and gives Duffy's address as "care L. R. Daems, city." This card was not signed by Mrs. Barnes. Duffy then gave Daems a check for $75 to meet immediate expenses of administration, and arrangements were made to have the Cooney notes taken up by the Federal Land Bank at Spokane. Some delay ensued by reason of objection to the title as shown by the abstract on the Duffey-Cooney ranch; but this was all cleared up early in October, 1928, and notice was received that the sum of $16,853 would be paid into the estate fund.

Seven claims, totaling approximately $1,000, were presented against the estate, principally for the expenses of burial and a tombstone, at Daems' office. Duffy, who was employed at herding sheep some thirty miles from Harlowton, called at the office before the money for the payment of the Cooney notes was received and was advised by Daems that the claims would be paid and that $2,000 could be distributed to each of the seven legatees as soon as the money was received, although it does not appear that the claims had been presented to the court for approval, that an order for the purchase of a tombstone had been secured, or that the matter of partial distribution had been taken up with the court. Daems then told Duffy that, for his convenience, to save a second trip to town, he should sign a sufficient number of blank checks to permit him, Daems, to take care of these matters, which Duffy agreed to do and did. Two of the heirs were owing debts which they agreed should be paid from their distributive shares, so that, to take care of the above matters, some sixteen or seventeen blank checks were needed. Daems then induced Duffy to sign four additional blank checks; they differ as to the purpose to which these checks should be put. Duffy's testimony is that Daems told him that additional claims might be filed for small sums and that, with these checks in his possession, he would be able to take care of them as they came up.

Daems testified that: "I informed him [Duffy] that I owed various persons in Harlowton for the labor and material used in the construction of an addition to my home and that I needed my attorney fees in order to pay each person. *** Mr. Duffy said 'All right, you use what you want,' and as a result of that request he signed four additional checks."

On or about October 24, the sum of $16,853 having been deposited, Daems filled in and delivered checks as agreed upon, and filled in the four additional checks, three payable to himself for $700, $500, and $500, respectively, and one to the Urner Lumber Company for $626.55, in payment of an account owing by him to that firm. This last-mentioned check is charged in the information to be a forgery. All checks mentioned were presented to the bank for payment and paid out of the funds of the estate; the last check, being for a part of one of the distributive shares, was presented and paid on November 9, 1928, and caused an overdraft of $455.87, and on November 23 Daems deposited in the account the sum of $500, leaving a small balance on deposit. The bank statement, with all canceled vouchers, was mailed to Owen Duffy in care of Daems, who opened the envelope and kept the contents. Duffy testified that he did not at any time authorize Daems to open mail addressed to his care.

At the outset Daems had advised Duffy that the estate could be closed in a year. After the lapse of a year, according to Duffy, he called upon Daems, who told him that the estate would be closed as soon as the judge came to town, and for the next three years he made demand in that behalf five or six times a year, but each time was "put off" with some such statement as that first made.

In October, 1932, Duffy and Mrs. Barnes called jointly on Daems and demanded the production of the bank statement, the returned checks, and a settlement. Daems finally produced eleven checks covering distribution to the heirs, but stated that he was unable to find the balance of the checks, which he said were "in the office and I will locate them." Daems testified to protracted search for the checks; they were never found and were not produced at the trial. Duffy testified that Daems "figured around all afternoon" with pencil and paper, and finally presented them with a statement from memory which included an item of $810.64 attorney's fees, which was not accepted by the representatives. Duffy returned home but instructed Mrs. Barnes to stay over until the next day and insist upon the production of the remaining vouchers and a settlement. On that day Daems drew up a final account in which he listed an executor's fee and a like amount as attorney's fees, but Mrs. Barnes stated that they had received no fee and did not want a fee. Daems then drew up a final account showing "cash on hand and received on notes '16,016.00"' and debits, including "attorney fee $849.14," of $15,928.64. Mrs. Barnes refused to sign the account and Daems signed it himself as "Attorney for Petitioners."

Mrs. Barnes secured a statement of the account from the bank showing the original balance of $166.17 and deposit to take up notes of $16,832.51, or a total credit of $16,998.68; the withdrawal of the full amount and $455.87 additional, and subsequent deposit of $500. This she took to Daems and went over with him the items of withdrawal and, for the first time, learned of the check issued to the Urner Lumber Company on his account. She testified that Daems told her that the Urner check and the $700 were his, but that he did not remember what the two $500 checks "were made out for."

With reference to the statement which included executor's fees, Mrs. Barnes testified that Daems told her, "Of course, you know this isn't right but we have to make it show up that way, and I'll settle it and pay every dollar back; I want your folks' confidence and I don't want to be embarrassed in any way, and if you will let it go through that way I'll make it all right with you; and he said, 'I'm responsible for that money."' She further testified that after going over the bank statement, Daems said he would waive his attorney fee rather than have trouble and would pay back every dollar the estate was short, would "sign a note or pay by the month, or settle any way we wanted him to that he could." He later made similar statements to Owen Duffy.

Mrs. Barnes, before returning home, turned the matter over to I. S. McQuitty, of Harlowton, who employed Emmett O'Sullivan, an attorney, and the representatives later signed a written withdrawal of Daems' authority and the substitution of O'Sullivan as their attorney.

McQuitty testified that he investigated the matter of the estate and found a shortage in the accounts and, with O'Sullivan, called upon Daems for an explanation and settlement; that Daems "confessed" to drawing the check to pay his own account, and admitted drawing a check for $700 and another for $500 to himself; that Daems stated it was a serious matter and that he would "do anything to effect a settlement with the estate and make good the loss to the estate"; would either give his note or draw up an agreement for stated payments; he wanted time to make the loss good. This witness stated that he did not think either he or O'Sullivan mentioned criminal proceedings in their discussion with Daems, but that Daems did.

O'Sullivan testified along the same line and added that after the four checks issued for...