State v. Dawe

• Decision Date: 24 December 1918
• Citation: 31 Idaho 796,177 P. 393
• Parties: STATE, Respondent, v. W. P. DAWE, Appellant
• Court: Idaho Supreme Court

177 P. 393

31 Idaho 796

STATE, Respondent, v. W. P. DAWE, Appellant

Supreme Court of Idaho

December 24, 1918

EMBEZZLEMENT-CONTINUING OFFENSE-ORDINANCES, GENUINENESS, PRIMA FACIE EVIDENCE OF-MUNICIPAL OFFICER OR AGENT-INDICTMENT-STATUTE APPLICABLE-ESTOPPEL.

1. Where provision is made by statute for proving a municipal ordinance by a copy thereof certified by the proper city official, a certificate in the form prescribed by law and signed by a person assuming to act in such official capacity is prima facie evidence of the genuineness of the ordinance entitling it to be admitted in evidence without other proof.

2. When, in compliance with the statute, an ordinance has been duly certified by the proper custodian thereof, so as to entitle it to be admitted at the time of certification, its admissibility in evidence is not disturbed by the lapse of time or by the passing out of the person then in office and the appointment of a new custodian.

3. Where one systematically institutes a continuous series of withholding of his principal's money for the purpose of acquiring for his own use ultimately a large sum, the series of acts constitutes but one offense, namely, embezzlement of the aggregate amount so withheld.

4. When the proof establishes the fact that the embezzlement of an aggregate amount has been accomplished by a continuous series of withholding certain sums not separately capable of direct proof, it is proper to treat the crime as one continuous offense, and such proof is sufficient to sustain a conviction of the embezzlement of such aggregate amount.

5. A city clerk who assumes to act on behalf of the city in collecting moneys of the city under purported ordinances authorizing him to so act, and who converts city money so collected to his own use, cannot defeat a prosecution for embezzlement upon the theory that because the purported ordinances were void, he had no authority as such city clerk to receive the moneys, and will not be heard to say that the ordinances were of no legal effect, and that he received the sums in question in a private capacity as a mere agent of the city.

6. Under such circumstances, the city clerk was properly indicted under Rev. Codes, sec. 7066, and this would be true even though the facts should necessitate his indictment as an agent rather than an officer. The statute applies to each alike, and if one converts to his own use money belonging to a municipality, which comes into his possession while acting in the capacity either of officer or of agent, the statute makes him guilty of embezzlement. It is expressly designed to cover all cases of embezzlement of public funds by public servants.

[As to what constitutes embezzlement and who may commit the crime see note in 87 Am.St. 515]

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. James G. Gwinn, Judge.

Prosecution for embezzlement. Judgment of conviction. Affirmed.

Affirmed.

Otto E McCutcheon and Briggs & McConnell, for Appellant.

Where each taking is a separate and distinct offense, the court should, on motion of the defendant, compel and require the state to elect upon which of the alleged several takings it will rely for a conviction. (Edelhoff v. State, 5 Wyo. 19, 36 P. 627.)

Where a person is a public officer and his duties are prescribed by law, he is never estopped, even when questioned for unlawful acts, to plead the law. If the defendant was not authorized by law to collect the moneys which the state alleges he did collect, the moneys certainly were not paid to the defendant by virtue of his trust, that is, by virtue of his office, but if received by defendant, were received simply as an agent. (People v. Shearer, 143 Cal. 66, 76 P. 813; Dickey v. State, 65 Tex. Cr. 374, 144 S.W. 271; Moore v. State, 53 Neb. 831, 74 N.W. 319; Hartnett v. State, 56 Tex. Cr. 281, 133 Am. St. 971, 117 S.W. 855, 23 L. R. A., N. S., 761; State v. Bolin, 110 Mo. 209, 19 S.W. 650.)

T. A. Walters, Atty. General, A. C. Hindman, J. P. Pope and J. Ward Arney, Assistants, for Respondent.

An ordinance shown in evidence to be in force at a given date is prima facie presumed to be still in force at the date of the subsequent action involving it. (O'Leary v. Chicago, R. I. & P. Ry. Co. (Iowa), 103 N.W. 362; McQuillin on Municipal Corporations, sec. 860, and cases there cited.)

"The official character of the officer as the legal custodian of the document, and therefore authorized to certify a copy of it, is proved prima facie by the certificate itself." (Galvin v. Palmer, 113 Cal. 46, 45 P. 172; Mott v. Smith, 16 Cal. 533.)

The evidence shows the crime to have been a continuing offense committed by a trusted servant by means of a series of connected transactions. It was in fact and in law a single embezzlement. (State v. Reinhart, 26 Ore. 466, 38 P. 822; Brown v. State, 18 Ohio St. 496; Ker v. People, 110 Ill. 627, 646, 51 Am. Rep. 706; Willis v. State, 134 Ala. 429, 33 So. 226.)

The defendant systematically instituted a continuous series of withholding of his principal's money for the purpose of acquiring for his own use, ultimately, a large sum. While this is the case, the doctrine of election does not apply, since the series of acts would constitute but one offense, and each separate act would not be a separate and distinct offense. (Carl v. State, 125 Ala. 89, 104, 28 So. 505; Gravatt v. State, 25 Ohio St. 162; State v. Noland, 111 Mo. 473, 19 S.W. 715, 722.)

Where an officer receives public money without authority and appropriates it to his own use, he is estopped to set up his lack of authority as a defense, and is guilty of embezzlement as a public officer. (People v. Royce, 106 Cal. 173, 37 P. 630, 39 P. 524; State v. Spaulding, 24 Kan. 1; People v. Robertson, 6 Cal.App. 514, 92 P. 498; Denton v. State, 77 Md. 527, 26 A. 1022; State v. Pohlmeyer, 59 Ohio St. 491, 52 N.E. 1027; People v. Hawkins, 106 Mich. 479, 64 N.W. 736; State v. Tumey, 81 Ind. 559; State v. O'Brien, 94 Tenn. 79, 28 S.W. 311, 26 L. R. A. 252.)

Where a public official acts in collecting the public revenues under color of ordinance or statute, even though they be void or unconstitutional, such money belongs to the public, and such officer assumes the responsibility in law of a de facto officer. (Chandler v. State, 1 Lea (Tenn. ), 296; Village of Olean v. King, 116 N.Y. 355, 22 N.E. 559; Swan v. State, 48 Tex. 120; Morris v. State, 47 Tex. 583; Waters v. State, 1 Gill (Md.), 302; Commonwealth v. City of Philadelphia, 27 Pa. 497; Middleton v. State, 120 Ind. 166, 22 N.E. 123; Mayor etc. of Hoboken v. Harrison, 30 N.J.L. 73.)

A de facto officer accused of embezzlement cannot defend on the ground that he had no right to receive the money as a public officer. (See 23 L. R. A., N. S., 763, for collection of cases.)

BUDGE, C. J. RICE, J., concur in the conclusion. MORGAN, J., Dissenting.

OPINION

BUDGE, C. J.

The appellant was convicted in the district court for Bonneville county of the crime of embezzlement. This appeal is from the judgment.

Appellant specifies fourteen separate assignments of error. The first five, relating to the admission of evidence, will be discussed together.

Objection is made to the admission of State's Exhibits "C," "D," "F," "G" and "T," purporting to be ordinances of the city of Idaho Falls, in that no proof was made by the state that any of these ordinances had ever been published or posted as required by law.

All of the above exhibits were signed and approved by a person who purported to be mayor of the city of Idaho Falls, and countersigned by a person who purported to be the clerk of the city, and copies thereof were certified by a person purporting to be the legal keeper thereof, to wit, the clerk, who affixed thereto the corporate seal.

It is insisted that the state should have gone further and proved the publication of each of the ordinances. There appears to be no rule upon this point which can be said to be of uniform application. (McQuillin on Municipal Corporations, sec. 864.) The supreme court of California has held that proof of the existence and identity of the ordinance offered is all that is required until some showing has been made that there was irregularity in its enactment (Merced County v. Fleming, 111 Cal. 46, 43 P. 392), and that the certificate of the city clerk under his official seal is prima facie evidence of the passage of an ordinance and renders it admissible in evidence. (People v. Baldwin, 117 Cal. 244, 49 P. 186.) Independent of the decisions, however, the rule in this state is fixed by statute. Rev. Codes, sec. 5977, subdivision 5, provides: "Acts of a municipal corporation of this state . . . . may be proved by a copy, certified by the legal keeper thereof, or by a printed book, published by the authority of such corporation." Under this statute, proof of publication of ordinances as a prerequisite to their introduction in evidence is not required.

There is no merit in the contention that State's Exhibits "C," "F" and "G" were not certified by the legal keeper thereof, "for the reason that the certificates were made by some person who some ten or twelve years prior to the date the same were offered in evidence claimed or pretended to have been city clerk of the city of Idaho Falls, without any proof on the part of the state of any kind or nature that the said parties attempting to certify the said ordinances ever had been clerk of the city of Idaho Falls." The statute above quoted does not provide that a municipal ordinance, in order to be admissible in evidence, must be certified by the then acting city clerk. The rule is that where provision is made by statute for proving a municipal ordinance by a copy thereof certified by the proper city...