State v. Larue

• Decision Date: 14 April 1925
• Docket Number: 4901.
• Parties: STATE v. LARUE.
• Court: West Virginia Supreme Court

128 S.E. 116

98 W.Va. 677

STATE v. LARUE.

No. 4901.

Supreme Court of Appeals of West Virginia.

April 14, 1925

Submitted March 24, 1925.

Rehearing Denied June 10, 1925.

Syllabus by the Court.

An indictment for embezzlement, as set out in section 19 of chapter 145 of the Code is sufficient.

To have the effect of disqualifying a venireman, his opinion must be substantial, and not a mere impression which will not interfere with his fairness. The question presented as to his qualification is one of mixed law and fact. The finding of the trial court upon that issue will not be set aside, unless the error is plainly manifest.

If all of the offenses charged in one or more counts of an indictment represent but one continuous transaction, it is well settled in this state that they may be so joined as distinct offenses in different counts, and that, where properly joined as distinct offenses, unless they appear on the face of the indictment to involve a different transaction, a motion to quash for misjoinder should be overruled.

A joinder as separate counts in one indictment of several offenses, which, though distinct in point of law, yet spring out of substantially the same transaction, cannot operate to the legal prejudice of the accused; and he is not entitled as a matter of right in such case to compel an election.

On the trial of an indictment for embezzlement, there is no error in the court refusing to compel the prosecution to elect upon what alleged act of embezzlement a conviction will be asked as embezzlement may, and often does, consist of many acts done in a series of years by virtue of the relations existing between the employer and the employee.

Where an entry is made by one person in the regular course of business, recording an oral or written report, made to him by one or more other persons in the regular course of business of a transaction lying in the personal knowledge of the latter, there is no objection to receiving that entry under the exception to the hearsay rule of books of original entry, provided the practical inconvenience of producing on the stand the numerous persons thus concerned would in the particular case outweigh the probable utility of doing so.

In such case, for the record of entries made in the established course of business on the original books of entry of a corporation, to be admissible as evidence, it is sufficient if the books were verified on the stand by a supervising officer who knew them to be the books of original entry, of the department or corporation under his supervision or control.

An instruction stating the law in the abstract and another applying the legal stated proposition to the facts in issue may be treated as a single instruction.

The conduct of the trial must necessarily be left largely to the discretion of the presiding judge--a discretion which cannot in its very nature, be made a subject of review, by this court, except in a clear case of abuse of that discretion.

Additional Syllabus by Editorial Staff.

In prosecution under Code, c. 145, § 19, for embezzlement through sale of cement belonging to county, excluding evidence of former commissioners of county court, which was insufficient to show sale of cement to accused, in view of fact that such transaction was not recorded as required by chapter 39, § 46, and that accused later, on proper demand, failed to account was not error.

Error from Circuit Court, Mason County.

I. W. Larue was convicted of embezzlement, and he brings error. Affirmed.

F. G. Musgrave and Somerville & Somerville, all of Point Pleasant, for plaintiff in error.

E. T. England, Atty. Gen., R. Dennis Steed, Asst. Atty. Gen., and Robert L. Hogg, Pros. Atty., of Point Pleasant, for the State.

WOODS, J.

The defendant was indicted for embezzlement, and on the trial was found guilty and by the judgment complained of adjudged to serve a term of two years in the penitentiary.

Our statute (section 19, c. 145, Code) provides:

"If any officer, agent, clerk or servant of this state, or of any county, district, school district or municipal corporation, * * * or other corporation, * * * embezzle or fraudulently convert to his own use, bullion, money, bank notes, security for money, or any effects or property of any other person, which shall have come into his possession, or been placed under his care or management, by virtue of his office, place or employment, he shall be guilty of larceny thereof. In the prosecution of any such officer, agent, clerk or servant, charged with such embezzlement, fraudulent conversion or larceny, if it appear that the possession of such bullion, money, bank notes, security for money or other property is unlawfully withheld by such officer, agent, clerk or servant, from the person or persons entitled thereto, and that such officer, agent, clerk or servant has failed or refused to restore or account for such bullion, money, bank notes, security for money or other property, within thirty days after proper demand has been made therefor, such accused officer, agent, clerk or servant shall be presumed to be guilty of such offense."

In 1917, Lewis district, in Mason county, voted bonds for the construction of hard-surface roads in said district, at which time, William Jividen, Hugh Daugherty, and I. S. Dabney were members of the county court of said county. The defendant was then engaged in handling and selling cement at the city of Point Pleasant. He had erected buildings for the storing and keeping of said material. On July 3, 1917, the said county court entered into a contract with the defendant to furnish all the cement, to be used in the construction of the cement roads in Lewis district in an amount not to exceed 33,000 barrels. The cement was shipped to the defendant, whereupon he would be paid by the county court, and after such payment he was permitted to retain the cement in his exclusive custody and control, for the use of the county. While this cement belonging to the county court, and having been paid for by it, was still in the custody of the said defendant, the state maintains that the defendant made sale of an enormous quantity thereof to various individuals throughout Mason county, and the said defendant received and appropriated to his own use the money therefor. An inspection of the records of the county court was made to determine how much cement the defendant had received compensation for from said county court, and this record was checked against the shipments received by the defendant. The state's evidence tended to show that the defendant during this entire transaction handled only Universal Portland cement. The records of this company showed that it had shipped 19,307 barrels of cement to the defendant. The records of the county court showed that 19,371 barrels of cement were purchased and paid for by the county court. The state introduced evidence to show that numerous parties aside from the Marietta Manufacturing Company purchased from the defendant 137 barrels of cement, and that the said Marietta Manufacturing Company alone purchased 2,480 barrels, for which it paid the defendant $6,528.77. The state put further evidence in the record, tending to show that the county court used but 15,820 barrels of cement. In April, 1922, the county court of Mason county caused to be served on the defendant the following notice:

"You are respectfully hereby notified to account for and pay over at once to the county court of Mason county any and all property now in your hands belonging to the said county court of Mason county. You are further hereby notified to account for and pay over to the said county court of Mason county at once the proceeds arising from the sale of any and all property belonging to the said county court of Mason county and sold by you while in your cusody; and more especially are you notified to account for and pay over the proceeds arising from the sale of cement and sacks belonging to the said county court of Mason county and especially the following sales are to be accounted for by you at once, inasmuch as the said cement sold was the property of the said county court of Mas on County: November 8, 1918, 173 barrels of cement sold to the Marietta Manufacturing Company; January 25, 1919, 21 sacks of cement sold to the Marietta Manufacturing Co.; January 29, 1919, 23 sacks of cement sold to the Marietta Manufacturing Company. You are further notified to account for and pay over the proceeds arising from the following additional sales made by you to the said Marietta Manufacturing Company, the said cement being the property of the county court of Mason county: Feb. 1, 1919, 30 bags; Feb. 24, 1919, 22 bags; Feb. 24, 1919, 231 barrels; Feb. 3, 1919, 44 bags; Feb. 4, 1919, 56 bags; Feb. 10, 1919, 36 bags; October 3, 1919, 236 barrels; November 5, 1919, 300 barrels; December 5, 1919, 60 bags; December 5, 1919, 60 bags; December 11, 1919, 120 bags; January 31, 1920, 35 bags; February 2, 1920, 20 bags; February 3, 1920, 12 bags; February 10, 1920, 30 bags; February 11, 1920, 130 bags; January 10, 1920, 614 bags; March 2, 1920, 380 bags; March 10, 1920, 20 bags; March 11, 1920, 60 bags; March 12, 1920, 60 bags; March 15, 1920, 924 bags; March 19, 1920, 924 bags; July 26, 1920, 100 barrels; May 18, 1921, 20 bags."

The evidence shows that no restoration or accounting was made by the defendant as a result of this notice. The indictment, on which the defendant was tried and convicted, was based upon sales of cement to the Marietta Manufacturing Company, extending over a period of about six months in the year 1920. Instead of making one count setting forth each of the ten transactions over this period of time, an indictment in twenty counts was returned, each one of the...