State v. Keife
| Decision Date | 31 October 1927 |
| Docket Number | 28848 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. KEIFE |
Rehearing Denied January 18, 1928
Appeal from Criminal District Court, Parish of Orleans; Frank T Echezabal, Judge.
Walter L. Keife was convicted of embezzlement, and he appeals.
Affirmed.
Edward M. Heath, Harold Moise, and Paul L. Fourchy, all of New Orleans, for appellant.
Percy Saint, Atty. Gen., and Eugene Stanley, Dist. Atty., and J Bernard Cocke, Asst. Dist. Atty., both of New Orleans (St. Clair Adams, of New Orleans, of counsel), for the State.
OPINION
Defendant, a shipping clerk of Kohlman Bros. & Sugarman, a New Orleans corporation, is indicted for the embezzlement of $ 9.40.
He was convicted and sentenced to serve a term of three months in the parish prison, and has appealed.
Bills of Exception Nos. 1, 2, 3, 4, and 5.
On the trial of the case, defendant objected to the introduction in evidence by the state of a certain pink slip, on the ground that this slip was not the original document, but was simply a copy of a certain yellow slip, "which was the real and official document from which the pink slip had been copied or corrected."
The per curiam to this bill shows that the defendant is in error as to the statement made by him. A white, pink, and yellow slip were offered on the trial by the state. They evidence an order for goods given by J. Pairno on September 30, 1925, and taken by a salesman of Kohlman Bros. & Sugarman. The order was written upon white, pink, and yellow sheets; the pink and yellow slips being carbon copies or duplicate originals. The defendant is charged with the embezzlement of $ 9.40, which was part of the payment of $ 17.40 made by Pairno for the goods sold to him.
This bill therefore is without any foundation whatever.
Defendant complains in bill No. 2 that the white, pink, and yellow slips introduced by the state did not constitute a complete transaction, in that four slips are not shown in evidence, "that the missing yellow or dray receipt was given to the drayman for delivery, and, after delivery, was turned over to the stableman, who kept the yellow or dray receipt all night with the cash C. O. D.'s, and that defendant always corrected the pink slip so as to conform with the missing yellow slip or dray receipt; it being defendant's contention that, if these yellow or dray receipts were produced, they would correspond with the pink slips, and thereby establish his innocence, showing that erasures and alterations were made in the yellow or dray receipt in the handwriting of some third person."
It is stated in the per curiam to this bill that:
This bill is contrary to the facts of the case, and is without merit.
In bills Nos. 2 and 3, defendant also objected to the admission of evidence by the state as to other acts of embezzlement on the part of the defendant. The specific act charged against the defendant is the embezzlement of $ 9.40 on September 30, 1925. The "recap" or summary of cash collections made by defendant on October 7, 1925, included only $ 8 of the original bill of $ 17.40, collected from Pairno on September 30, 1925. Various collateral acts of embezzlement in September and October, 1925, were offered in evidence, and were shown to have been committed through alterations made by defendant of the amounts appearing originally in the pink slips or C. O. D. sales, made to their customers by Kohlman Bros. & Sugarman. The evidence objected to by defendant was admitted, not as substantive proof of the offense on trial, but merely for the purpose of showing intent and system, and the jury was so instructed. We find no error in the ruling of the judge a quo. State v. Jackson, 163 La. 34, 111 So. 486; Wharton's Crim. Ev. (10th Ed.) vol. 1, §§ 30, 31, 39; People v. Bidleman, 104 Cal. 608, 610, 38 P. 502; People v. Lyon, 33 Hun, 623; 2 N. Y. Cr. R. 484; Leach v. State, 46 Tex. Cr. R. 507, 510, 81 S.W. 733; Reg. v. Richardson, 8 Cox Crim. Cas. 448, 2 Fost. & F. 343.
While Alvin Dirblun, a state witness, was on cross-examination, counsel for defendant attempted to prove by the witness that a certain purported inventory, presented to witness by counsel, was taken by defendant. As shown by the per curiam to this bill, the trial judge refused to admit the inventory, for the reason that witness could not identify same as being in defendant's handwriting.
The ruling was correct, as the inventory so-called was by private act, and its execution by defendant had not been proven prior to the offer to introduce the document in evidence.
The following question was propounded on cross-examination by counsel for defendant to Henry Warner, a state witness:
"Did you discover any shortage against the actual check, checking from your inventory to the actual stock in the store?"
This question was excluded by the court, for the reason that the inventory referred to in the question was not the company's; it was not the witness'; and the evidence failed to show that any inventory whatsoever had been made by any one. When defendant testified, he failed to avail himself of the opportunity to identify the purported inventory as made by him, or to refer to it in any manner.
If the witness had been permitted to answer the question, he would have based his answer on nothing more than a list of the company's stock made by the defendant, without any supervision by the company, or any of its officers or agents, and without any proof as to its correctness.
The question was clearly objectionable, as it assumed as a fact that an inventory had been made by the company, when such was not the case. The witness interrogated was the vice president and treasurer of Kohlman Bros. & Sugarman.
It is true that the purpose of introducing the inventory was to show that some of the stock was missing, and that there might have been other persons, as well as defendant, interested in destroying the yellowslips or draymen tickets by an incendiary fire, which had taken place in the vault where these papers had been deposited.
However, the exclusion of the inventory did not prevent defendant from proving by himself on the witness stand any of the facts within his own knowledge, as to the presence of suspicious persons on the premises, or as to any theft which may have been committed by any third person from the merchandise on hand. But defendant did not avail himself of any such testimony in the case.
Both of these bills are so general, vague, and indefinite that the trial judge merely annexed defendant's entire testimony, without writing a per curiam to either bill.
Defendant complains that, when he was on the stand as a witness, he was asked on cross-examination questions as to matters not brought out on direct examination, and that might also incriminate him. When defendant took the witness stand, he testified on examination in chief that he was not a thief and that he had honestly changed the pink slip in this case in order to make it conform to the yellow slip or drayman's ticket. He was interrogated on cross-examination as to a certain transaction in which the pink slip had been changed so as to alter the amount of goods sold, and also the price. He replied that he did not recollect the transaction.
Counsel for defendant at this point specifically objected, for the first and only time, that the state should be restricted to the examination of defendant as to matters brought out on examination in chief. The court properly overruled the objection because the witness had answered denying any knowledge of such transaction. The answer was not prejudicial in any way to the witness, even had the question propounded in cross-examination been objectionable for the reason...
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