State v. Gammons

• Decision Date: 30 July 1934
• Docket Number: Cr. No. 113.
• Citation: 64 N.D. 702,256 N.W. 163
• Parties: STATE v. GAMMONS.
• Court: North Dakota Supreme Court

64 N.D. 702

256 N.W. 163

STATE

v.GAMMONS.

Cr. No. 113.

Supreme Court of North Dakota.

July 30, 1934.

Syllabus by the Court.

1. A refusal by the trial court, at the close of the state's case, to advise the jury to return a verdict of not guilty is not error, since the jury is not bound by such advice.

2. In the prosecution of a criminal action for embezzlement where the question of intent is a material element, the state may introduce competent relevant evidence bearing upon the question, even though it tends, incidentally, to establish collateral matters or to prove collateral crimes.

3. In a prosecution for embezzlement, the burden of proving all the elements of the crime rests on the prosecution; but where the state has made a prima facie case of embezzlement, as by proving facts which give rise to a presumption in its favor, it becomes incumbent upon the defendant to adduce evidence in denial or explanation of the incriminating circumstances. Held, for reasons stated in the opinion, that there is sufficient evidence to sustain the verdict of guilty.

Appeal from District Court, Burleigh County; Fred Jansonius, Judge.

John Gammons was convicted of embezzlement, and he appeals.

Affirmed.

John F. Sullivan, of Mandan, and Scott Cameron, of Bismarck (James M. Hanley, Jr., of Mandan, of counsel), for appellant.

P. O. Sathre, Atty. Gen., Milton K. Higgins, Asst. Atty. Gen., and George S. Register, State's Atty., of Bismarck, for the State.

MOELLRING, Judge.

The defendant was convicted in the district court of Burleigh county of the crime of embezzlement. There was a motion for a new trial which was denied, and defendant appeals from the judgment of conviction and also from the order denying the motion for a new trial.

The information charges that on or about August 20, 1931, the defendant was the duly appointed, qualified, and acting secretary of the Industrial Commission of the state of North Dakota, and that he received and had in his possession, as such secretary, moneys and credits of the value of $600, which were public moneys and credits belonging to said state, consisting of the proceeds from a cashier's check; and that as such secretary he was charged with the safe-keeping of the same, and that he willfully, unlawfully, and feloniously converted the said moneys and credits to his own use.

The motion for a new trial is based upon certain alleged irregularities, and on this appeal are presented under seven specifications of error. The first specification is to the effect that the trial court erred in denying the motion of defendant, made at the close of the state's case, that the court advise the jury to return a verdict of not guilty, for the reason that the entire evidence of the state is not sufficient, as a matter of law, to sustain a conviction. Specifications 2 and 5 are to the effect that there is not sufficient evidence in the record to sustain a verdict of guilty. Specifications 3 and 4 predicate error on the admission of certain testimony and exhibits, and 6 and 7 challenge the regularity of the sentence and judgment imposed.

[1] With reference to specification numbered 1, the evidence produced by the state, in the first instance, discloses that defendant was secretary of the Industrial Commission from July, 1923, to January, 1933. On August 17, 1931, he received as such secretary a certain cashier's check (Exhibit 1) for $600, payable to “Secretary Industrial Commission.” This was for interest on a certain certificate of deposit issued by the Bank of North Dakota in the sum of $20,000, and belonging to the Military History Fund of the state, which had been created or established by the Industrial Commission, in the Bank of North Dakota, out of the remainder of the Soldiers' Bonus Fund, and pursuant to a law to that effect.

The check was indorsed by the defendant as secretary of the Industrial Commission and transferred to the First National Bank of Bismarck, N. D., August 19, 1931. The proceeds were deposited in defendant's private account in the said bank, and for which he received credit on his account in the sum of $600. The account was carried in the name of “John Gammons, Secretary,” and there is evidence of previous and subsequent deposits in this account; also, evidence that Mr. Gammons had issued checks against this account, and that he received cash personally, at the bank, on execution of counter checks. The account was finally closed on December 31, 1932; the defendant receiving in cash the balance remaining of $226.86. There is also evidence to the effect that the defendant made an admission that said account was his own private account.

The state then rested its case, and the defendant thereupon made a motion requesting the court to direct and advise the jury to return a verdict of not guilty, on certain grounds, which, in substance, are to the effect that the state has failed to prove the material allegations of the information, and, therefore, that the state has failed to prove the defendant guilty of the offense charged in the information.

Section 10854, Comp. Laws 1913, provides: “If, at any time after the evidence on either side is closed, the court deems it insufficient to warrant a conviction, it may advise the jury to acquit the defendant. But the jury are not bound by the advice, nor can the court, for any cause, prevent the jury from giving a verdict.”

Since the jury are not bound to follow the advice of the court with reference to a motion for an advised verdict of not guilty, it is not error for the court to deny such motion. State v. Wright, 20 N. D. 216, 126 N. W. 1023, Ann. Cas. 1912C, 795;State v. Albertson, 20 N. D. 512, 128 N. W. 1122.

Upon denial of the motion by the defendant for a directed verdict, the defendant then introduced evidence in support of his defense; the defendant himself taking the witness stand as the first witness in his behalf.

[2] As assignments of error numbered 2 and 5 challenge the whole record to the effect that the offense charged in the information has not been proven by competent evidence, it is necessary, therefore, to consider what the record discloses with reference to proof of guilt on the part of the defendant.

In addition to the facts established by the state, in the first instance, the defendant admitted receipt of the proceeds from the said cashier's check and deposit in his private account, but claims that such proceeds were used by him to pay his wife for certain work which he claims she performed in the preparation of a permanent record for the state, with reference to soldiers' bonus transactions had with the state between July 1, 1928, and October 31, 1929. He contends, further, that she was employed by the Industrial Commission to prepare this record, and that the authority therefor is a resolution passed by the commission, reduced to writing and signed by the members; and he claims that in pursuance thereof his wife worked nine months, full time, at a fixed compensation of $175 per month, and $100 per month, part time, for the remainder of the period. He contends that this permanent record was in the form of a record book, and was burned in the fire which destroyed the capitol building on December 28, 1930, and that the record of her appointment was destroyed in this fire. It appears, further, that the minutes and records of the Industrial Commission were also destroyed by the fire. On the other hand, the state contends that no such employment was authorized or existed, but that the deposit of such funds was made by the defendant with the purpose of converting the funds to his own use. The issues of fact as thus presented to the jury were therefore quite simple.

Defendant claims that before he employed his wife to prepare such record he consulted with Mr. George Shafer, who was then the Attorney General, and also with Mr. Joseph Kitchen, the commissioner of agriculture and labor, and who were, by virtue of their offices, respectively, members of the Industrial Commission, about the matter of employing his wife to prepare the record mentioned; and that a resolution was duly passed by the Industrial Commission, for which he claims both of said members voted. This is denied by Mr. Shafer, who states that no such resolution was ever presented or passed while he was a member of the commission, and that he had no knowledge that the defendant was depositing Industrial Commission funds in the First National Bank. He recalled stating to the defendant on one occasion that the funds of the Industrial Commission could not be placed legally in any depository except the Bank of North Dakota. Mr. Shafer was a member of the commission, either as Attorney General or as Governor, from January 1, 1923, to January 1, 1933. The trial court correctly instructed the jury that the defendant could not legally deposit the funds in any depository except the Bank of North Dakota. See section 5192a7, 1925 Supplement to the Compiled Laws 1913.

The defendant admitted, on cross-examination, that he had deposited in said private account in the First National Bank, between December 18, 1925, and December 16, 1928, about $13,000, which consisted largely of interest withdrawals from various funds of the Industrial Commission that were then on deposit in the Bank of North Dakota on certificates of deposit. Defendant contends that the reason for such deposits in his private account was that he was using the interest withdrawals to pay expenses of the soldiers' bonus transactions, and to pay his wife for her services which he claims aggregated $2,275; and he contends, further, that in each instance, before interest was withdrawn, a resolution was presented to and passed by the Industrial Commission listing and describing the specific expenses which were to be paid from each of such interest payments, respectively. This is denied by Mr. Shafer, who testified that no such transactions or resolutions were ever had, and that he had no knowledge...