State v. Judd

• Decision Date: 25 June 1929
• Docket Number: 4742
• Citation: 279 P. 953,74 Utah 398
• Court: Utah Supreme Court
• Parties: STATE v. JUDD

279 P. 953

74 Utah 398

STATE v. JUDD

No. 4742

Supreme Court of Utah

June 25, 1929

Rehearing Denied July 31, 1929.

Appeal from District Court, Third District, Salt Lake County; M. L Ritchie, Judge.

George T. Judd was convicted of fraudulently appropriating public money to his own use, and he appeals.

AFFIRMED.

Badger Rich & Rich, of Salt Lake City, for appellant.

George P. Parker, Atty. Gen., and L. A. Miner, Asst. Atty. Gen., for the State.

CHERRY, C. J. EPHRAIM HANSON and FOLLAND, JJ., concur. ELIAS HANSEN, J., concurs in the result. STRAUP, J. dissenting.

OPINION

CHERRY, C. J.

The defendant was charged with having on the 23d day of July, 1923, feloniously appropriated to his own use $ 200 of public money belonging to Salt Lake county, which had come into his hands as deputy county treasurer. He was tried before a jury, found guilty, and sentenced to imprisonment in the state prison. From the judgment of conviction he has appealed to this court.

A reversal of the judgment is sought upon the grounds of alleged errors of the trial court in the admission and rejection of evidence, and in certain of the court's instructions to the jury. The accused was a deputy county treasurer of Salt Lake county from 1921 to 1927, in charge of the redemption department of the county treasurer's office. An audit disclosed a shortage of the funds in that particular department of $ 7,064.96 during the period from May 1, 1922, to August 27, 1926. It was the theory of the state that money belonging to the county had been unlawfully appropriated, and the fact concealed by false entries in the books of account and the records of that department.

Evidence was introduced showing the system of keeping records and accounts in the department, and numerous instances of alterations or false entries, obviously made to cover up shortages. The business of the redemption department, of which the accused had charge, was to receive payments in redemption of property previously sold for taxes. Upon such a payment being made, the system in use required the transaction to be recorded as follows: An appropriate receipt or certificate was executed in duplicate, one of which was issued to the redemptioner and the other transmitted to the state auditor. Stubs of the certificate were also made in duplicate, one of which was transmitted to the county recorder, to be entered on his record, and the other retained in the redemption department of the office of the county treasurer. These certificates and stubs all purported to contain the amount of tax, penalty, interest, and costs collected, with other appropriate facts, and, except for the certificate issued to the redemptioner, furnished the basis for the entry of the redemption in the several records of the respective offices. The stub retained in the redemption department was the original and base entry for the charge against the county treasurer and the redemption funds in his possession; that is to say, the aggregate of the amounts shown on the stubs of the redemption certificates was the amount with which the department was charged and for which it was accountable. From this stub an entry was made in the delinquent tax sale record, showing the redemption of the particular property redeemed, and from the stub was obtained the amount to be charged against the treasurer in the registry of receipts, the cash account, and in the record of apportionments, where sums received for redemptions were apportioned and distributed among the respective governmental units entitled thereto.

The system of records and accounts was such that misappropriation of money could be temporarily concealed by a manipulation of accounts, whereby in a given transaction the correct amount of money received would be acknowledged to the redemptioner, entered on the delinquent sale record, and reported to the county recorder and the state auditor, and a less amount entered upon the other books and records mentioned; the latter being the fiscal debit charges against the department. For obvious reasons the correct amount paid must be stated in the certificate issued to the redemptioner, and because the delinquent tax sale record and a similar record in the office of the county recorder both showed the amount of delinquent taxes opposite each tract of land sold, the correct amount to discharge such delinquency on redemption had to be reported and entered, else the discrepancy would be apparent. By entering reduced amounts in the records and books of account referred to in the redemption department, an abstraction of money to the extent of such reduction could be covered and the accounts of the office be made to appear correct.

The alteration and false entries relied upon to prove the offense charged in the information arose out of a transaction whereby on July 23, 1923, one J. M. C. redeemed certain property from a delinquent tax sale by a payment of $ 391.94. This was the correct and necessary amount required to be paid, as shown by the records of the department, and the certificate of redemption in the handwriting of the accused recited the receipt of such sum. The treasurer's stub, however, had been altered by changing the figure "3" in the hundred column to "1," thus making it appear that $ 191.94 only had been received. The entry in the apportionment record was for the reduced sum, and apparent changes had been made in the daily cash account to make it correspond with the alteration. There was sufficient evidence to warrant the jury in finding that the accused made the alterations and entries referred to.

In addition to the alteration and falsification of the records concerning the transaction relied on to establish the particular offense charged, the state was permitted to prove, over the objection of the accused, numerous other similar alterations and false entries relating to over 40 transactions occurring at various times, both before and after the offense charged, and between May 1, 1922, and August 27, 1926. Complaint is made that the admission of this evidence was erroneous (1) because it related to other independent and disconnected offenses; and (2) because, with respect to the evidence of most of the transactions, the evidence of the connection of the accused with the supposed offenses was not of sufficient degree to render the proof of such other offenses admissible.

The evidence complained of was not irrelevant and inadmissible because it connected the accused with other criminal offenses. It is a rule of general application that, in embezzlement cases, proof of other acts similar to the one charged is admissible to show criminal intent, 1 Wigmore on Evidence § 329; Underhill on Crim. Ev. (3d Ed.) § 447; 2 Jones, Comms. on Ev. (2d Ed.) §§ 624-626; State v. Siddoway, 61 Utah 189, 211 P. 968; note to State v. Downer, 43 L.R.A. 774.

Nor can the objection to the evidence be sustained upon the grounds that it was not sufficient in degree to connect the accused with the other similar alterations and falsifications. The general rule is that evidence is not relevant or admissible unless it reasonably tends to establish the fact sought to be proved. But "the evidentiary fact offered does not need to have strong, full, superlative probative value, does not need to involve demonstration, or to produce persuasion by its sole and intrinsic force, but merely to be worth consideration by the jury." 1 Wigmore on Evidence, § 29; 2 Jones, Comms. on Ev. (2d Ed.) § 726.

But here we have a situation where evidence of collateral acts is admissible as an exception to the general rule for the restricted purpose of forming a basis for arguments and inferences that the act in controversy was done with evil intent. And the question arises: By what degree of certainty must such collateral act be established to make it a safe basis for the purpose for which it may be employed? If the proof of the collateral act be sufficient to amount only to surmise or conjecture, or merely tends to show it as a fact, is it a sufficient basis for inference and argument concerning another act, as would be the case if the collateral act was satisfactorily established as a fact?

Upon the question of what degree of proof or probative value of evidence of other similar offenses is necessary to the admissibility of such evidence, when it is otherwise relevant, the authorities are not harmonious. It is held in some few cases that it must be clear and sufficient to support a verdict of the guilt of the accused of such other offenses. Haley v. State, 84 Tex. Crim. 629, 209 S.W. 675, 3 A. L. R. 779, and annotation following. Other cases and authorities prescribe a lesser test. Thus is Commonwealth v. Robinson, 146 Mass. 571, 16 N.E. 452, 456, the court said:

"There is no rule of law that, in order to render the testimony admissible, such prior fact must be established by a weight of evidence which will amount to a demonstration, and shut out all doubt or question of its existence. It is only necessary that there should be so much evidence as to make it proper to submit the whole evidence to the jury."

The circumstances of the present case, however, do not require a decision by this court, of the particular degree of proof requisite to the relevancy of such evidence. Testing the evidence in question by the rule that it must be sufficient to make out a prima facie case of guilt, and therefore sufficient to support a verdict of guilty if the acts had been charged, we find the evidence so admitted sufficient in probative value and weight as to be relevant and admissible. Such collateral acts are subject to proof by circumstantial evidence, and when so established become facts which may be taken as the bases for new inferences of fact. 1 Jones Comms....