State v. Mathis

• Court: Louisiana Supreme Court
• Writing for the Court: BLANCHARD, J.
• Citation: State v. Mathis, 106 La. 263, 30 So. 834 (La. 1901)
• Decision Date: 01 January 1901
• Docket Number: 14,010
• Parties: STATE OF LOUISIANA v. T. W. MATHIS

30 So. 834

106 La. 263

STATE OF LOUISIANA v. T. W. MATHIS

No. 14,010

Supreme Court of Louisiana

January 1, 1901

APPEAL from Fifth Judicial District, Parish of Winn -- Machen, J.

Walter Guion, Attorney General, and A. B. Hundley, District Attorney, (Lewis Guion, of Counsel), for Plaintiff, Appellee.

J. T Wallace, J. H. Mathews, Earl E. Kidd, W. M. Wallace and Hunter & Hunter, for Defendant, Appellant.

OPINION

BLANCHARD, J.

The accused was treasurer of the Parish of Winn. As such he was custodian of the parochial funds and those pertaining to the School Board of the parish.

He was indicted for embezzlement and larceny of the funds of the School Board, tried by jury, convicted of embezzlement and sentenced to pay a fine equal to the amount embezzled ($ 2,996.01) and to be confined at hard labor in the penitentiary for five years.

He appeals.

Fifteen bills of exception attest the zeal and stubbornness with which his counsel defended him.

Six only of these, however, are pressed upon our attention. Following the example of counsel, the court will confine its examination of the case to the issues raised by these six bills.

The first of these is numbered six in the record and is leveled at the ruling of the trial court permitting one Smith, a witness for the State, to testify as to the result of his examination of the Treasurer's books.

The objection made to Smith's testimony was that it was not shown the witness was an expert book-keeper, and that the books themselves were the best evidence of the facts sought to be elicited.

The judge, in his reasons for overruling the objection, states the witness testified he had been engaged in book-keeping since 1885, a part of the time in mercantile houses doing a large credit business, and that when he made the examination of the books he was one of a committee appointed by the grand jury, of which body he was a member, for the purpose. The judge thought the witness' long experience as a book-keeper qualified him sufficiently as an expert to warrant his evidence being heard as to what the books disclosed.

There is nothing to show that he was mistaken as to this, and his ruling is sustained.

Wharton Criminal Evidence, 9th Ed., p. 339, §§ 406, 408.

The other part of the objection, that the books themselves were the best evidence of the facts sought to be elicited from the witness, the judge gives as a reason for overruling it that the books did not show the result of the examination of the committee appointed by the grand jury. This, doubtless, meant that the books themselves unexplained, showed nothing to the court and jury.

It is not understood that the object in calling the witness Smith to the stand was to show the contents of the books, but that its object was to show the witness had examined the books and what the result of his examination was. Whether the books had then been produced and offered in evidence, the bill of exceptions does not disclose.

The objection that "the books, themselves, are the best evidence" does not convey the information that they had not been offered, for even if they had, prior to the examination of the witness, been tendered and received in evidence, yet might the objection be made (however untenable) that the books were the best evidence and the matter of their contents, what they showed or did not show, could not be gone into by parol.

But this witness was called as an expert, who, under authority of the grand jury and of the judge in his charge to that body had already examined the books, and it was competent for him to give testimony as to the result of that examination.

"Expert accountants may be permitted to give in evidence the result of their examination of the books, accounts, etc., kept by the alleged embezzler in connection with the trust which he is claimed to have violated, when such books, accounts, etc., are too voluminous to permit of an examination of them in court."

Am. and Eng. Ency of Law, 2nd Ed., Vol. 10, verbo "Embezzlement," p. 1034; State vs. Findley, 101 Mo. 217; State vs. Reinhart, 26 Oregon, 466; Wharton Crim. Ev., 9th Ed., Section 166; Underhill on Crim. Ev., p. 56, par. 45.

In Hollingsworth vs. State, 111 Ind. 289, the Supreme Court of that State held that experts, who make an examination of voluminous books, records, papers and files of the County Treasurer's office, may be allowed to testify to such facts shown by the books and records as will establish the amount of the defalcation. See also Underhill on Crim. Ev., p. 351, par. 291.

The fact that the witness Smith had been a grand juror and had participated in the finding of the indictment, did not disqualify him from testifying on the trial of the indictment. His testimony at the trial, of what was the result of his examination of the books, is to be considered in no wise a disclosure of the secrets of the grand jury-room.

Bill of exceptions No. 7 is the next one insisted on, and it is leveled at the ruling of the judge in permitting the witness Crawford, called by the State, to testify as to the amount of public funds he had delivered into the hands of the accused as Parish Treasurer.

Objection was made that the receipts signed by the accused were the best evidence, and, second, that the indictment did not allege the accused received any money from Crawford.

In his statement the judge says Crawford was sheriff of the parish when he delivered the funds to Mathis, and had stated on the stand he rarely took a receipt when he paid moneys over to the Treasurer; but that, to be on the safe side, he (the judge) permitted the witness to leave the stand and make search for receipts. This he did, and returning to the stand in the afternoon testified he had made diligent search and had found no receipts; that if any had been taken they were lost or destroyed. That, thereupon, he was permitted to give testimony as to the amount of money he had paid over to Mathis.

There was no error here.

As to the second objection embodied in this bill,...