State v. O'Gorman

• Decision Date: 31 October 1878
• Citation: 68 Mo. 179
• Parties: THE STATE v. O'GORMAN, Appellant.
• Court: Missouri Supreme Court

68 Mo. 179

THE STATE

v.O'GORMAN, Appellant.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Lafayette Criminal Court.--HON. WM. H. H. HILL, Judge.

The appellant, who was the former clerk of the county court of Layfayette county, was indicted at the June term, 1875, of the criminal court, for fraud in office. The indictment contained three counts, the second of which was abandoned at the trial. The first count charged that defendant “being the clerk of said court from January 1st, 1871, to January 1st, 1875, did, on the 1st day of January, 1875, and at the end of the year 1874, willfully, corruptly, knowingly, &c., fail and refuse to file a statement in detail, under oath or affirmation, showing the aggregate amount of fees and emoluments received by him as clerk for the year 1874.”

The third count charged that “defendant, during his term of office, and on the 18th day of November, 1874, did, willfully, corruptly, fraudulently, &c., represent and show that he had not received, for the year 1874, in the aggregate of all official fees and emoluments, more than the sum of $2,500, after deducting such sums as were necessary and proper for the payment of deputies and assistants; and that there was no surplus to pay into the county treasury; and did then and there procure the court to receive the said statement, and discharge the said defendant from making any further statement or settlement of official fees for the year 1874, and did so cause the court to make said order, whereas, in truth, the fees for said year amounted to $7,764, and leaving a balance, after deducting $2,500 and reasonable deputy hire, of $2,598; that he did, with the intent to cheat, cause and procure said false settlement and discharge to be made, and is, therefore, guilty of a fraud in office.”

Defendant filed a motion to quash the indictment, the grounds of which are stated in the opinion of the court. This motion was overruled, and defendant excepted.

At the trial the State offered the records of the county court as follows: 1. November 18th, 1874. Now comes James O'Gorman and states that the fees received by him in 1874 do not exceed the amount allowed by law, and the court being satisfied from this statement that such fees do not exceed that amount, settles with him--to which the defendant objected, as the same was illegal and incompetent, as the same was made at a time when the defendant could neither make or the court act upon such a statement, and the statement did not appear to be under “oath or affirmation.” The objection was overruled and defendant excepted. 2. January 1st, 1875, O'Gorman ordered to appear and settle at adjourned January term. 3. January 18th, 1875, O'Gorman appears and offers settlement. 4. Steele ordered to examine records, and write to State auditor and report at next term of court amount of fees received by O'Gorman. 5. So much of record as showed Steele did make a report. 6. Order reciting--whereas O'Gorman, through his deputy, represented to county court on the 18th day of November, 1874, that his fees did not exceed amount allowed by law, and proper deputy hire; whereas, at January term, 1875, he stated they amounted to $5,979.16; and whereas, subsequent investigation by Steele showed $7,764.99 was received, and O'Gorman swore this was correct; and whereas, he was then ordered to pay $2,598.35 into the treasury, and has not done so, the prosecuting attorney is ordered to bring suit, and these proceedings to be certified to the grand jury, to meet in a few days.

Wm. B. Steele, for the State, testified that he was the present county clerk. The county court was in session December 21st, 1874, and adjourned to January 4th, 1875. With reference to order of November 18th, 1874, he never saw any statement in detail or under oath; all he saw was the record; a short time after defendant was cited to appear before the county court and make a settlement, he came into the office and wanted witness to assist him in examining the records, and get an account of all the fees he had ever received; I did assist him; he called off the amounts and I set them down; found several amounts not on the index; we tried to get all items; I made out the list; O'Gorman brought it into court, but would not swear that it contained all the fees, as he might have overlooked some; we found a few items not indexed; the order of the 18th day of November, 1874, is in the handwriting of Dulin, O'Gorman's deputy; there is no statement in detail for 1873; there is an order on record showing that defendant settled with the court, and that the court was satisfied by the evidence, likewise for 1871 and 1872 the court was satisfied by the evidence and settled; witness did not know what evidence was before the court; witness examined the records for 1871, 1872 and 1873, and found no settlement in detail or under oath for these years; it does appear from the record that defendant appeared and settled each year, but not in detail. Defendant objected to all evidence as to these years, because it is not charged that he failed to settle for these years, and the only tendency of the evidence is to show defendant guilty of another and distinct offense.

J. A. Quarles, deputy under Steele, testified about the same as Steele; and in addition, that the settlement of defendant being continued to the February term, 1875, defendant appeared and swore to a statement on which the court settled; witness stated that it was a correct statement; defendant claimed that the order of November 18th, 1874, was made without his knowledge, and he never claimed the benefit of it or relied on it before the county court; all fees received by defendant can be found from his books; the books are correct; he told me I was more familiar with the books than he was, and for me to go over them and see that all the fees were included in his statement.

The State then read the orders of settlement for the years 1871, 1872 and 1873, and also read in evidence a detailed statement of the fees for those years prepared by the witness Quarles. This statement was prepared from the official records and papers of the county, and showed that defendant had received during the year 1871, $7,604.39; during the year 1872, $9,825.36, and during the year 1873, $7,783.77. Defendant objected for the reason stated above, and also because the books were the best evidence.

For the defendant Judge Steunkel, one of the justices of the county court, testified that on the 18th day of November, 1874, as court was about to adjourn, Dulin, the deputy, said, “What about O'Gorman's settlement?” The presiding judge asked if the county attorney had approved it, and Dulin said ““Yes,” and presented a paper with the county attorney's name to it, and the presiding judge then said, “Let the order be made;” defendant was not present; he made no affidavit or statement to the court on November 18th, 1874, or before; he neither said nor did anything.

The state asked four instructions, which were given: 1. If defendant was county clerk for the year 1874, and his fees and emoluments for that year were in excess of $2,500 and reasonable deputy hire, as allowed by the county court; and if, on the 1st day of January, 1875, or at the end of the year 1874, he failed and refused to file a detailed report, and deliver the same to the justices, with the intent, &c., of defrauding the county of the surplus over $2,500, or such sum as allowed by the court, then the jury should find defendant guilty on the first count. 2. If, as clerk, &c., he procured, or caused to be procured, from said court, the order (November 18th, 1874,) discharging him from all liability for such surplus, with the intent, &c., the jury will find defendant guilty on the third count. 3. If there was a large amount in excess of $2,500 and deputy hire, as fixed by the court, and he failed and refused to file under oath or affirmation a detailed statement at the end of the year of fees for 1874, with the intent to appropriate such surplus, and not account for the same, such intent was unlawful and corrupt; and if he procured, or caused to be procured, the order discharging him from liability (order of November 18th, 1874), with the intent, &c., the jury will find him guilty. 4. If clerk, it was his duty, at the end of the year 1874, or prior to the 3d day of January, 1875, to make out and deliver to the county court a statement in detail, under oath, showing his fees; and if he willfully and corruptly failed and refused to make the statement, the jury will find him guilty.

The following instructions asked by defendant were given: 1. By the first count of the indictment the defendant is charged with a misdemeanor in not having filed, at the end of the year, a detailed statement in writing, under oath, showing the aggregage amount of all official fees received by him as county clerk for the year ending January 1st, 1875, and although the jury may believe and find from the evidence that the defendant failed to file said statement at the end of the year, yet, if the jury further find that he did afterwards file said statement, under oath, and that the same was received and approved by the county court, then the jury will find the defendant not guilty as to said count, unless they should further find and believe from the evidence that he failed to file said statement at the end of the year with intent to cheat and defraud the county, or from some other willful or corrupt motive. 2. In order to constitute a misdemeanor, as charged in the first count of the indictment, it is necessary that the intent and the act upon the part of the defendant must correspond, and although the jury may find from the evidence that the defendant failed to file said itemized statement at the precise time required by the statute, yet, in order to constitute a misdemeanor the jury must find that defendant willfully and corruptly failed to file said statement with intent thereby willfully and...