State v. Lack, 7400
| Decision Date | 26 August 1950 |
| Docket Number | No. 7400,7400 |
| Citation | 221 P.2d 852,118 Utah 128 |
| Parties | STATE, v. LACK. |
| Court | Utah Supreme Court |
Newell A. Call, Salt Lake City, for appellant.
Brigham E. Roberts, Dist. Atty., Salt Lake City, Clinton D. Vernon, Atty. Gen., Allen B. Sorensen, Asst. Atty. Gen., Mark K. Boyle, Asst. Atty. Gen., for respondent.
Defendant was indicted for embezzlement of bottles of whiskey having a value in excess of $50. He was convicted, and he appeals.
On December 13, 1945, defendant took over as agent of the State Liquor Control Commission, package agency No. 78 in Salt Lake City. This agency was conducted in connection with a pharmacy at South Temple and E Streets, of which defendant and a partner became the owners on the aforesaid date. Defendant knew of a shortage which existed under prior management, as disclosed by the written agreement executed by him, for he agreed to pay all shortages which occurred prior to that date. However, at the trial on the charge of embezzlement he denied that he was aware of the extent of those shortages which were shown to aggregate $10,888. The accumulated shortages based on the retail value of the liquor, aggregated $37,805 at the time inventory was taken in March 1948. Evidence adduced revealed that the shortages were concealed by padding the sales reports. Upon sale of liquor the customer made out a sales card showing the number of bottles, code number of the liquor, price per unit, total purchase price, the liquor permit number of the customer, and his name and address. These cards were required for accounting purposes. Defendant had a number of cards called 'specials' which merely showed the amount, kind and price of liquor sold, but these cards were never sent to the commission. Such 'specials' were included in the record of sales only when deposits of receipts were made. Inventories were taken by a representative of the commission subsequent to the close of a report period, and reconciled back to the end of the last report period. Defendant's bookkeeper reported to the field auditor the number of sales made between the date of report and the time of inventory, and included those 'specials' in the column of sales along with other sales made for which deposits had not yet been reported.
Defendant made numerous sales in case lots to various clubs, on which sales he collected a premium price, and divided such premium payment between himself and one or more other persons. In the accumulation of liquor for such sales, cases of the brands ordered were taken from the agency, stored in garages and hauled to the various clubs. When shortages appeared on the reports, demand for payment was made and payment of the shortages discovered on the reports was usually made promptly except during the early part of 1948 when the amounts were deducted from defendant's contract allowance for handling the agency. In February 1948 the commission ordered an audit. The time for making such audit was postponed.
On the morning of March 2, 1948, the night watchman found a rear door to the pharmacy open, some liquor cases stacked on a stairway, and some bottles scattered on the floor of one store room. The watchman notified defendant. When he arrived he called the commission and declared 'they have ruined me.' When asked by the police officer whom he referred to by 'they', he said, 'the politicians have ruined me.' Lack told the police his place had been burglarized and that large quantities of liquor had been taken during the night. He suggested to the police that the liquor might have been taken to Price by persons he suspected of committing the burglary.
Upon the report of the alleged burglary in the newspapers, some persons who had passed the corner where the agency was situated, reported to the police what they had seen at the location and also the activities of the defendant during the night of the alleged burglary. Defendant reported to the police that he left the pharmacy at about 11:15 P. M. after locking up the place, and that he was the last person to leave. Two witnesses, including a cab driver, testified that defendant was observed in the pharmacy near the door turning off the burglar-alarm about 11:30 P. M., and that an automobile identified as his car was parked at the agency at that time.
Various witnesses who were in the vicinity of the agency who passed there at different times throughout the night, testified that they saw nothing hauled away from the agency. A number of taxicab operators who reported to the dispatcher by radio or by telephone at a cab stand at that intersection, waited at such station for 10 minutes up to a half hour, and saw nothing hauled away. The intersection was well-lighted. Defendant's car attracted some attention by reason of the fact that a door was left open and the dome light was on, after closing time at the pharmacy. About 12:30 A. M. of March 2, 1948, a cash register which was identified as the one owned by defendant and used in his business at the pharmacy was found by a taxicab operator on a street some distance from the pharmacy. This evidence was used to show that the activities described by defendant as a 'burglary', occurred prior to a half hour past midnight. Up to that time cab operators were within view of the building and the entrance to the agency, every few minutes. This evidence was introduced by the state to establish the contention that the 'burglary' was faked by defendant for the purpose of concealing the liquor shortage.
The errors on which defendant relies for reversal, may be grouped as (a) procedural errors which precluded the state from proceeding to trial (b) the use of incompetent evidence, (c) misdirection of the jury, and (d) improper conduct of the court.
In the first category, appellant contends that the indictment and the trial thereunder, were invalid by reason of failure to obtain the consent of the governor to the proceeding. He relies on Sec. 46-0-70, U.C.A. 1943, a section of the Liquor Control Act, which provides: 'Except with the written consent of the governor no action or proceeding shall be taken against any member or members or against any official or vendor of the commission for anything done or omitted to be done in or arising out of the performance of his or their duties under this act.' (Italics added.)
The contention of appellant is without merit. The quoted provision of the statute in question is a part of a chapter of the act which relates to its administration and to the powers and functions of the Liquor Control Commission. It grants a limited and conditional waiver of the immunity of the state and its officials to civil suit. This is so palpable from the context of the provision as to raise a doubt as to whether the contention of defendant is seriously made. To argue that the section quoted gives an official of the commission or any agent thereof immunity from criminal prosecution unless the governor consents thereto, is to ascribe to the Legislature an intent to give the commission power to loot the state with impunity provided only the chief executive consents thereto. Clearly nothing was farther from the legislative mind when the cited section was enacted.
Appellant next contends that the trial court should have granted his demand in entirety for a bill of particulars, wherein he demanded copies of invoices, delivery sheets, inventories, ledger sheets, vendors' reports and other evidentiary matters. As stated by this court in State v. Jameson, 103 Utah 129, 134 P.2d 173, 175, 'The bill of particulars need not plead matters of evidence.' Sec. 105-21-9(1), U.C.A. 1943, was designed to enable a defendant to have stated the particulars of the charge which he must meet, where the short form of indictment or information is used. It was not intended as a device to compel the prosecution to give an accused person a preview of the evidence on which the state relies to sustain the charge.
The defendant also made a motion to have the court impound certain documents for examination by defendant prior to trial. He alleges that the court abused its discretion in denying such motion. No abuse of discretion appears from the record. It is within the sound discretion of the trial court whether a defendant shall be allowed or denied the privilege of examination of evidence in the possession of the prosecution prior to trial. See State v. Payne, 25 Wash.2d 407, 171 P.2d 227, 175 P.2d 494; and People ex rel. Lemon v. Supreme Court, 245 N. Y. 24, 156 N.E. 84, 52 A.L.R. 207.
Complaint is also made that defendant was deprived of a fair trial by reason of the refusal of the trial court to compel a witness for the state who appeared on special process from the state of Texas, to remain during the course of the trial. The witness, E. M. Rogers, who had been bookkeeper for defendant, was required to remain an extra day during which time the defendant's counsel had ample opportunity to examine him. It is urged that it was not...
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