State v. Frank C. Williams

• Decision Date: 16 October 1920
• Citation: 111 A. 701,94 Vt. 423
• Parties: STATE v. FRANK C. WILLIAMS
• Court: Vermont Supreme Court

111 A. 701

94 Vt. 423

STATE v. FRANK C. WILLIAMS

Supreme Court of Vermont

October 16, 1920

[Copyrighted Material Omitted]

May Term, 1920.

INDICTMENT for violation of G. L. 7104. Plea, not guilty. Trial by jury at the September Term, 1918, Washington County Stanton, J., presiding. Verdict, guilty. The respondent excepted. The opinion states the case.

Judgment that there is no error in the proceedings, and that the respondent take nothing by his exceptions. Let execution be done.

Frank Plumley and J. Ward Carver for the respondent.

Frank C. Archibald, Attorney General, and Earle R. Davis, State's Attorney, for the State.

Present: WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

SLACK

The indictment contains seven counts, each of which charges the respondent with a violation of G. L. 7104, which provides: "A state, county, town, village, fire district or school district officer who wilfully neglects to perform the duties imposed upon him by law, either express or implied, shall be imprisoned", etc., by wilfully neglecting to perform the duties imposed upon him as bank commissioner by G. L. 568, 569. The former section provides: "Said commissioner shall annually examine the books and papers of the auditor of accounts", and the latter provides: "Such commissioner shall biennially report to the General Assembly the result of his examination * * * of the books and papers of the auditor of accounts", etc.

The first count charges that the respondent wilfully neglected to examine the books and papers of the auditor of accounts for the fiscal year ending June 30, 1916; the second count charges that he wilfully neglected to report to the General Assembly of 1917 the result of his examination of the books and papers of the auditor of accounts for the biennial period ending June 30, 1916; the third charges that he wilfully neglected to report to the General Assembly, at its biennial session in 1917, the fact, then well known to him, that the auditor of accounts had withdrawn from the state treasury, contrary to law, by the use of fraudulent and unlawful orders drawn upon the State treasury, by himself, as such auditor, and payable to himself, large sums of money, during each of the biennial periods ending June 30, 1910, 1912, 1914, and 1916, and unlawfully converted the same to his own use, which orders and sums were entered, and then and there appeared, upon the books and papers in the office of the auditor of accounts; the fourth count is like the third, in substance, except it covers only the biennial period ending June 30, 1916; the fifth is like the third, except it alleges that the orders so drawn and used by the auditor appeared upon the books and papers of the State treasurer and the books and papers of the auditor of accounts; the sixth is like the fourth, except it alleges that such orders appeared upon the books and accounts of the State treasurer and upon the books and papers of the auditor of accounts; the seventh need not be noticed because the respondent was discharged thereon at the close of the State's evidence.

Horace F. Graham was auditor of accounts from October, 1902, to January, 1917. The respondent was bank commissioner from January, 1909, to January, 1919. During the latter period the books and papers of the auditor of accounts which showed his transactions as such were a daybook and a loose-leaf distribution ledger, both books of original entry, the orders drawn by him upon the State treasury, department vouchers, so-called, and itemized vouchers. The department vouchers were personal receipts given by State officials for orders given them by the auditor, to cover expenditures thereafter to be made and services thereafter to be performed. Such officials were supposed to furnish the auditor, later, with itemized vouchers showing what the money had been actually used for.

The distribution ledger was made up from data contained in the vouchers, and showed the number of each order, its date, amount, to whom drawn, and for what purpose. The purpose was stated in a general way, when department vouchers were taken, but when itemized vouchers were furnished, whether at the time the order was drawn or later, the items were classified as salary, postage, telegrams, clerk hire, etc., and so entered in the ledger. The daybook contained the same information, except the classification of the items appearing in the vouchers.

Exceptions numbered 1, 2, 3, 4, 9, 10, 11, and 15, in the respondent's brief raise practically the same questions, and therefore are considered together. They relate to the admission in evidence of the books and papers in the office of the auditor of accounts covering a period more than three years prior to the finding of the indictment, and to testimony relating to various transactions that appear in such books and papers during the same period. The respondent claims that this evidence was incompetent, because it only tended to show separate and distinct offences which were not covered by the indictment, and which were barred by the statute of limitations. While it is an elementary principle of law, recognized by the cases cited by the respondent, that the commission of one crime is not admissible in evidence upon the trial of another, where its sole purpose is to show that the respondent has been guilty of other crimes, and would consequently be more liable to commit the offence charged, if the evidence is material to the issue, it is not inadmissible because it tends to establish the respondent's guilt of a crime other than the one charged. State v. Sargood et al., 77 Vt. 80, 58 A. 971; Opinion of Parker, C. J. in People v. Molineux, 168 N.Y. 264, 62 L. R. A. 193, 61 N.E. 286 at 312, and cases there collected.

There is a clear and important distinction between allowing evidence of the conviction of another crime to show motive, intent, or guilty knowledge, or where the crime proved is an incident to, a part of, or leads up to, the crime with which a respondent is charged, and a case where the crime proved is entirely independent of, and disconnected with, the crime charged. State v. Donaluzzi, 94 Vt. 142, 109 A. 57; People v. McLaughlin, 150 N.Y. 365, 44 N.E. 1017 at 1023; Weed v. People, 56 N.Y. 628; People v. Van Tassel, 156 N.Y. 561, 51 N.E. 274; People v. Place, 157 N.Y. 584, 52 N.E. 576. In the former instance such evidence is admissible; in the latter it is not.

The neglect of the respondent in failing to examine the books and papers of the auditor of accounts, and to report the result of such examination to the General Assembly, to constitute an offence under the statute, must have been wilful, which has been said by this Court to mean, at least, intentional and by design. State v. Palmer, 94 Vt. 278, 110 A. 436; State v. Muzzy, 87 Vt. 267, 88 A. 895; State v. Burlington Drug Co., 84 Vt. 243, 78 A. 882. The evidence under consideration, so far as it related to the time when the respondent was bank commissioner, was clearly admissible, both on the question of the respondent's knowledge of what appeared in the books and papers of the auditor, and as tending to show that his failure to report such information to the General Assembly was wilful; that is, intentional and by design. It is obvious that the longer such books and papers disclosed a shortage in the auditor's account the greater the probability that the respondent knew of such shortage, and the longer he knew of it and neglected to report it to the General Assembly, or failed to report it truthfully, the stronger the inference that his action in that respect was wilful.

So, too, the evidence of shortage in the auditor's accounts prior to the time the respondent became bank commissioner, at least, if such shortage continued down to 1916, as the State's evidence tended to show, was admissible on the question of intent or wilfulness, if the respondent had knowledge of it. Unless such knowledge appeared, this evidence was incompetent. It does not necessarily follow, however, that its admission is cause for reversal. We think that even under the rule that formerly obtained in this State, its admission did not constitute reversible error. State v. Roby, 83 Vt. 121, 74 A. 638; State v. Bean, 77 Vt. 384, 60 A. 807; State v. Plant, 67 Vt. 454, 32 A. 237, 48 A. S. R. 821; State v. Turley, 87 Vt. 163, 88 A. 562. But under our present practice the burden is upon the excepting party to show that he has been prejudiced by the alleged error. S.Ct. Rule 7; Russ v. Good, 92 Vt. 202, 102 A. 481; Gilman Bros. v. Booth, 91 Vt. 123, 99 A. 730; State v. Pilver, 91 Vt. 310, 100 A. 674; Smith v. Martin, 93 Vt. 111, 106 A. 666. This the respondent has not done. Other and competent evidence in the case is convincing, not only that there was a large shortage in the auditor's account at the close of the biennial period ending June 30, 1916, but that the respondent knew, or ought to have known, such fact, for a long time prior to that date, and that he did not report it to the General Assembly of 1917. Indeed, this evidence is such that the jury could not fail to find these facts, and, further, to draw the inference that the respondent's neglect to report the same to the General Assembly was wilful. The charge of the court, too, as to the use to be made of this evidence, and under what circumstances, could have left no doubt in the minds of the jurors concerning the matter. It not being made to appear that the admission of this evidence was prejudicial, the exception is not sustained.

The respondent's claim that evidence of shortage in the auditor's account prior to three years previous to the finding of the indictment, and of his failure to report to the General Assembly in 1910, 1912, and 1914, was inadmissible because...