State v. Kurth
| Decision Date | 04 November 1937 |
| Docket Number | No. 7646.,7646. |
| Citation | 105 Mont. 260 |
| Parties | STATE v. KURTH. |
| Court | Montana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Cascade County, Eighth District; H. H. Ewing, Judge.
Lloyd Kurth was convicted of embezzlement, and he appeals from the judgment and from an order denying his motion for a new trial.
Affirmed.
H. R. Eickemeyer, of Great Falls, for appellant.
Harrison J. Freebourn, Atty. Gen., and Mark H. Derr, Asst. Atty. Gen., for the State.
This is an appeal by defendant from a judgment of conviction of the crime of embezzlement under section 11318, Revised Codes, and from an order denying his motion for a new trial.
The information charges that the city of Great Falls owns and operates its own water plant; that by ordinance it created the board of water commissioners and the office of water registrar; that defendant was the duly appointed water registrar between the 4th day of May, 1931, and the 26th day of June, 1933, and as such chargeable with the duty, prescribed by ordinance, of collecting water rentals from the consumers of water in Great Falls and accounting for the same daily to the city treasurer, and that he did on the 6th day of May, 1931, and on divers dates and days from thence continuously to the 11th day of June, 1933, receive public funds belonging to the city in the amount and value of $9,251.40, and that he did “wilfully, knowingly, unlawfully, fraudulently and feloniously, omit, refuse, neglect and fail to pay over the aforesaid mentioned sums of public money belonging to the said city of Great Falls, Montana, unto the said city treasurer of the city of Great Falls, Montana, or at all.”
The first point urged by defendant on the appeal is that the information charged more than one offense and hence was duplicitous, and that the demurrer thereto raising this question should have been sustained.
The courts are practically in accord in holding that an information charging embezzlement similar to that here is not duplicitous, where the embezzlement is accomplished by a continuous series of acts. State v. Peters, 43 Idaho 564, 253 P. 842;State v. Dawe, 31 Idaho 796, 177 P. 393;Casselman v. State, 58 Okl.Cr. 371, 54 P.(2d) 678;Moore v. State, 58 Okl.Cr. 122, 50 P.(2d) 746;Camp v. State, 31 Ga.App. 737, 122 S.E. 249;State v. Wetzel, 75 W.Va. 7, 83 S.E. 68, Ann.Cas.1918A, 1074;Norman v. State, 44 Ga.App. 92, 160 S.E. 522;Craig v. State, 95 Fla. 374, 116 So. 272;State v. Noland, 111 Mo. 473, 19 S.W. 715;Young v. State, 44 Ohio App. 1, 184 N.E. 24;People v. Fleming, 220 Cal. 601, 32 P.(2d) 593;Roland v. Commonwealth, 134 Ky. 170, 119 S.W. 760;State v. Dix, 33 Wash. 405, 74 P. 570;State v. Leonard, 56 Wash. 83, 105 P. 163, 21 Ann.Cas. 69.
Defendant contends that these and similar cases are inapplicable here because of the provisions of the city ordinance making it his duty to account for the funds collected by him daily. The State statute, however, and not the ordinance must be resorted to to ascertain whether a crime was committed. The ordinance was properly pleaded to show that defendant was chargeable with the receipt, safekeeping, and transfer of public funds within the meaning of section 11318, supra. Failure to comply with the city ordinance requiring daily reports might have been explained consistent with defendant's innocence of the crime of daily embezzlements. In other words, the mere fact that there was not a daily accounting for the funds as prescribed by the ordinance would not necessarily establish the criminal intent necessary to constitute embezzlement. The State had the right to treat the series of acts as constituting one embezzlement culminating in the failure to account for the funds at the end of the term of the officer, and thereby obviate the difficulty of proving the requisite intent to constitute any of the intermediate acts a crime. The demurrer was properly overruled.
The defendant contends that the court erred in admitting evidence going beyond the scope of the information as limited by a bill of particulars furnished by the State pursuant to court order. In effect his view is that the bill of particulars, instead of advising him of the facts which he would be required to meet, was used as an instrument of deception. Careful consideration of the entire record, consisting of 940 typewritten pages, convinces us that his contention cannot be sustained.
The demand for a bill of particulars sought to require the State to apprise defendant specifically, amongst other things, of the names of the persons from whom water rentals were received by defendant between the dates named in the information, the amounts thereof and the dates when received, and what items of money he failed to pay over to the city, from whom and the time they were received and the amounts. The order for the bill directed that it give the following:
“First: The monies belonging to the city of Great Falls, Montana, which the defendant, Lloyd Kurth, received and had for safe keeping and for transfer, between the 6th day of May, 1931, and the 11th day of June, 1933, which it is alleged he, the said Lloyd Kurth, neglected and failed to pay over or transfer unto the city treasurer of the city of Great Falls.
Second: The time when the said Lloyd Kurth received such monies, giving dates, amounts and names of persons from whom said defendant received said monies for the city of Great Falls, Montana, as water registrar or acting water registrar.
Third: The monies belonging to the city of Great Falls, Montana, that the said defendant, as water registrar or acting water registrar, received from water rentals or from materials furnished consumers ‘on the 6th day of May, 1931, and on divers dates and days from thence continuously to the 11th day of June, 1933,’ and which it is alleged the said defendant did omit, refuse, neglect and fail to pay over and transfer unto the city treasurer of the city of Great Falls, giving the names of the persons from whom said water rentals were received, and to whom said materials were furnished, the amounts so received, and the dates when each of said amounts were so received.”
Pursuant to this order, the State furnished a bill of particulars consisting of 146 typewritten pages, stating:
“1. That the monies belonging to the city of Great Falls, Montana, which the said Lloyd Kurth received and had for safe keeping and transfer on and between the 6th day of May, 1931, and to the 11th day of June, 1933, which plaintiff claims the said defendant, Lloyd Kurth, neglected and failed to pay over and transfer unto the city treasurer of the city of Great Falls, is the sum of Ten Thousand, Two Hundred Sixty-three Dollars and 05/100 ($10,263.05).
2. That pursuant to the second and third sub-division of said order, the plaintiff does hereby annex an itemized statement and made a part of said bill of particulars showing the dates and amounts and the names of the persons, firms and corporations from whom the defendant as water registrar or acting water registrar, received monies for water rentals and materials furnished consumers on and between the 6th day of May, 1931, and to the 11th day of June, 1933, and failed and neglected to pay over and deliver the same, or similar sum or sums of money equal to the various separate items set forth and described in said annexed statement unto the city treasurer of Great Falls, Montana.”
Then followed 214 separate items, each of the same character excepting as to names, dates, amount, and numbers. The first item is a fair illustration of them all. It reads:
“Tap No. 4658 Anaconda Copper Mining Co.
Ledger reads:
May 9, 1931 $520.20 Receipt No. 1434 $52.00 $468.20
Receipt No. 1434 shows dated May 9, 1931, received of Pipinich, for:
Receipt No. 1434 amounting to $11.80 was charged on the Registrar's Cash Book and credit given to the city of Great Falls Water Fund, but this transaction does not pertain to payment of water charges for Tap No. 4658, Anaconda Copper Mining Co. amounting to $468.20. The payment of $468.20 was paid by check of Anaconda Copper Mining Co. Great Falls Reduction Dept., on First National Bank of Great Falls and Metals Bank & Trust Co., Butte, dated May 6, 1931, No. 2049, endorsed by Lloyd S. Kurth, Registrar. This item was...
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