State v. Kimbrell

• Decision Date: 25 July 1939
• Docket Number: 14923.
• Citation: 4 S.E.2d 121,191 S.C. 238
• Parties: STATE v. KIMBRELL.
• Court: South Carolina Supreme Court

4 S.E.2d 121

191 S.C. 238

STATE v. KIMBRELL.

No. 14923.

Supreme Court of South Carolina

July 25, 1939

Odom Bostick & Taylor, of Spartanburg, for appellant.

Samuel R. Watt, Sol., and Evans, Galbraith & Holcombe, all of Spartanburg, for the State.

BAKER Justice.

The appellant and one, L. I. Gregory, were, at the Fall term of the Court of General Sessions for Spartanburg County, placed on trial on an indictment charging that they had embezzled the sum of five thousand five hundred thirty-four and 42/100 ($5,534.42) dollars, of the public funds of the Commissioners of Public Works of the City of Spartanburg, South Carolina. They were convicted of jointly embezzling two thousand ninety-three and 41/100 ($2,093.41) dollars, and sentenced but have made separate appeals to this Court. See the opinion in State v. Gregory, S.C., 4 S.E.2d 1, filed within the past few days.

Gregory was the secretary and treasurer of the said Public Works, the appellant the assistant secretary and treasurer. Gregory kept the books and ledger of general accounts, the appellant the books and ledger of consumers' accounts. All items going to make up the amount alleged to have been embezzled should have appeared on the books kept by Gregory but did not.

At the conclusion of the respondent's testimony, counsel for this appellant moved for a directed verdict of "Not Guilty" as to him; and again, at the conclusion of all testimony the same motion was made.

To establish the charge in the indictment, respondent relied wholly on circumstantial evidence. The items with which appellant was shown by the testimony to have been connected were two checks, one drawn by the County Board of Spartanburg County in the amount of three hundred thirty and 66/100 ($330.66) dollars, and another drawn by the City of Spartanburg in the amount of twelve and 75/100 ($12.75) dollars. Both checks were payable to the Water Works of Spartanburg, and were issued in payment of bills due the Water. Works.

The paid check for $12.75 bore the endorsement: "For deposit only to the credit of Spartanburg Water works by T. V Kimbrell, Assistant Secretary & Treasurer." This item was never credited on the books, but there is no testimony that it did not in fact go to the credit of the Water Works at the bank wherein the Water Works carried its deposit.

There is a somewhat different situation with reference to the item of $330.66. The County Board issued its warrant for this amount and when the bank presented the warrant, a check was then issued therefor. The warrant, insofar as the Water Works was concerned, was treated as a check. Appellant receipted for the warrant, which according to the testimony was not indicative of wrong doing--was not out of the ordinary. This warrant was thereafter cashed or deposited to the credit of the Water Works, and carried the endorsement of the Spartanburg Water Works by appellant. There was no credit of this amount shown on the books kept by Gregory, the books on which it should have appeared. The record discloses that a petty cash fund amounting to around $350 was carried in the office of the Water Works to which several persons had access, and apparently whenever any of these persons desired ready cash, they would put a "due slip" in the cash drawer in the amount of such money as was desired and removed therefrom; and that from time to time the petty cash was replenished by cashing checks accumulated in the cash drawer; and again checks payable to the Water Works were often cashed in order to meet payrolls. The only requirement of the drawee bank was that some one authorized to endorse such checks for the Water Works, did so. It is admitted by all that these items should not have appeared on the books kept by this appellant.

The foregoing is a synopsis of the testimony on which respondent depended to prove the charge of embezzlement against appellant; and when Gregory was testifying in his own behalf, he stated that on one occasion the cash on hand was short $105, and when he and appellant were unable to find this shortage, appellant suggested that "cash-stubs" in a like amount be destroyed, and thus balance the cash. (It was in evidence that when a collection for water was made, there was placed in a box a slip or card showing the receipt of such money, this being denominated a cash-stub). The "cash-stubs" were posted to the books kept by appellant.

In passing upon the motion for a directed verdict of "Not Guilty" at the conclusion of the respondent's testimony, the trial Judge said: "I really have my doubts about the Kimbrell...