State v. Matkins
| Decision Date | 20 December 1930 |
| Citation | 34 S.W.2d 1,326 Mo. 1072 |
| Parties | The State v. W. A. Matkins, Appellant |
| Court | Missouri Supreme Court |
Appeal from Linn Circuit Court; Hon. Paul Van Osdol, Judge.
Affirmed.
J. K Owens for appellant.
(1) The court erred in not discharging the jury after the remark of counsel for the State in his opening statement to the jury. Counsel stated that the State offered a reward for the arrest of defendant, before he was arrested, and, after defendant's objection, turned to the jury and stated "We will prove the same," referring to the statement. State v. Babbst, 131 Mo. 339; State v. Ulrich, 110 Mo. 365; State v. Fisher, 124 Mo. 460; State v. Jackson, 95 Mo. 655; State v Sheeler, 300 S.W. 318. (2) The indictment did not state facts sufficient to constitute a crime against the defendant. State v. Martin, 204 S.W. 537. (3) The court erred in allowing the witness Craig to testify, over defendant's objections, to the audit of certain books not introduced in evidence and which were in the possession of the State's counsel. 22 C. J. 16, sec. 1303; State v. Findley, 101 Mo. 217; Citizens Trust Co. v. Ward, 195 Mo. 223; Cox v. Philadelphia, 38 Pa. 545; Howard v. Russell, 12 S.W. 525; Fox v. Baltimore, 12 S.W. 525; Folborton v. Gibson, 32 S.E. 151; Masonic Mutual Ben. Society v. Lackland, 97 Mo. 137. (4) The court erred in admitting plaintiff's Exhibits 23, 24 and 25 (the same being checks drawn on the bank account of the Treasurer of Sullivan County to Coleman and Busick). State v. Turner, 76 Mo. 350; State v. Young, 119 Mo. 495; State v. Taylor, 136 Mo. 66; State v. Foley, 247 Mo. 635. (5) The court erred in not excluding all of the evidence of the witness Craig, for the reason that it was shown by his testimony that he did not make the audit in regard to which he testified, but that the audit was made by Gibson, and most of said audit was made when Craig was not even present. Masonic Mutual Ben. Society v. Lackland, 97 Mo. 137; State v. Findley, 101 Mo. 217; Traber v. Hicks, 131 Mo. 180; Shepard v. Transfer & Stg. Co., 243 S.W. 193; State ex rel. v. Macke, 186 S.W. 590; Meriwether v. Railroad, 128 Mo. 167; Fountain v. Railroad, 114 Mo.App. 676; Folborton v. Gibson, 32 S.E. 151; Stoddard v. Stock Yards, 138 F. 721. (6) The court erred in refusing to give defendant's instruction in the nature of a demurrer asked for by the defendant at the close of the State's evidence in this cause, and again at the close of all the evidence in said cause. State v. Fowler, 177 S.W. 381; State v. King, 174 Mo. l. c. 662; State v. Martin, 204 S.W. 537. (7) The court erred in refusing to give Instruction A offered by the defendant. State v. Martin, 204 S.W. 537.
Stratton Shartel, Attorney-General, and Carl J. Otto, Assistant Attorney-General, for respondent.
(1) The indictment properly charged the crime, hence the defendant's objection to the introduction of any evidence on the ground that it did not state facts sufficient to constitute a crime, and his motion to quash, were properly overruled. Sec. 3334, R. S. 1919; State v. Colson, 30 S.W.2d 59; State v. Baker, 285 S.W. 416; State v. Noland, 111 Mo. 473; State v. Hays, 78 Mo. 600; State v. Flint, 62 Mo. 398. (2) The court was not in error in refusing to discharge the jury because of the prosecuting attorney's remarks in his opening statement. State v. Dudley, 245 Mo. 183; State v. Beaghler, 18 S.W.2d 427; State v. Richmond, 12 S.W.2d 36; State v. Pleake, 177 S.W. 358; State v. Rasco, 239 Mo. 579; 16 C. J. 890, sec. 2226. The error was cured by the court's reprimand. No further reprimand was requested. State v. Story, 274 S.W. 56. (3) The testimony of Craig with reference to his audit of the defendant's books and the result thereof was properly admitted. The books and documents it is shown by the record were in the courtroom during the trial and open to the defendant. State v. Howell, 317 Mo. 335, 296 S.W. 370; State v. Findley, 101 Mo. 223; Stetina v. Bergstein, 231 S.W. 1059; Masonic Mut. Benefit Society v. Lackland, 97 Mo. 137; 1 Greenleaf on Evidence (16 Ed.) sec. 563h; Wharton's Crim. Ev. (10 Ed.) sec. 166. (a) The complaint that the testimony of the witness should have been excluded because it was shown that he did not make the audit and that most of it was made when he was not present is without merit. His testimony shows that he made a complete and thorough audit of the books to the best of his ability as a certified public accountant; that his firm was employed to audit the books and although he personally was there about two weeks and did not do all of the detail work it was done under his supervision and he was responsible for it. He was properly allowed to testify. State v. Thompson, 289 S.W. 648; State v. Howell, supra; State v. Colson, supra. (b) Moreover, this assignment of error is based solely on defendant's motion to strike out the testimony at the conclusion of the whole testimony and after defendant had cross-examined and recalled the witness for cross-examination no less than five times. The motion to strike out was then too late. State v. Young, 24 S.W.2d 1046; State v. Lehman, 175 Mo. 619; State v. Pyles, 206 Mo. 626; State v. Arnewine, 136 Mo. 130. (4) The exhibits objected to are checks drawn by defendant without authority on the County Treasurer's bank account to Coleman and Busick. They were properly admitted in evidence. State v. Ross, 279 S.W. 409; State v. Woodward, 171 Mo. 599. Granting that they were evidence of other offenses, they were admissible to show the intent of the defendant. State v. Lomax, 14 S.W.2d 438; State v. Wilcox, 179 S.W. 480; State v. Meininger, 268 S.W. 77. (5) There was ample evidence to sustain the verdict, hence defendant's demurrer was properly overruled. State v. Baker, 285 S.W. 416; State v. Shour, 196 Mo. 224; State v. Noland, 111 Mo. 490; State v. Findley, 101 Mo. 217. It was unnecessary for the State to prove that the defendant received the money or the benefit therefrom, or that a demand was made. State v. Morris, 281 S.W. 720; State v. Meininger, 268 S.W. 74; State v. Moreaux, 254 Mo. 411.
Cooley, C. Davis and Westhues, CC., concur.
By an indictment returned in the Circuit Court of Sullivan County, defendant was charged with embezzlement of $ 2990.30 of the public moneys, to-wit, the state and county revenues belonging to Sullivan County and the State of Missouri, received by him and in his possession and custody as County Treasurer of said county; it being further alleged in the indictment that the particular sources or funds from which he received the moneys could not be stated, because, instead of keeping the revenues in separate and distinct funds as required by law, he commingled all together. Upon defendant's application a change of venue was awarded to the Circuit Court of Linn County at Brookfield where the cause was tried, resulting in defendant's conviction and sentence to two years' imprisonment in the penitentiary, from which he appeals.
The indictment, returned September 13, 1928, charges the offense to have been committed on or about April 30, 1928. Defendant was then and during all the time involved herein, Treasurer and Exofficio Collector of Sullivan County, that county having theretofore adopted township organization. His books and accounts as treasurer were audited in 1928, the examination occupying about a month, from July 12 to August 10, revealing a shortage, and on September 6, 1928, the office was "taken over" by another. The evidence was directed particularly to the period from May 1, 1927, to April 30, 1928, and the particular item referred to in the indictment seems to be a shortage in the moneys received for delinquent or back taxes between the dates last mentioned, since the amount charged to have been embezzled corresponds with the shortage shown by the State's evidence in moneys so received between those dates.
Mr. Wilson, County Clerk, identified and there were introduced in evidence the monthly reports made between the dates above named by defendant as Ex-officio Collector, showing the amounts of delinquent taxes collected each month, and the evidence shows that "those reports were taken to the County Court, they were filed as the quarterly settlements of the Treasurer." It was shown that when delinquent taxes were paid duplicate receipts were made out, one being given to the person paying the tax and the other left in the tax receipt book, which, according to the State's evidence, was kept in and constituted part of the records of the Treasurer's office. These books containing the duplicate tax receipts for the year from May 1, 1927, to April 30, 1928, were introduced in evidence and are referred to by witnesses as the delinquent tax books.
Mr. Wilson testified that shortly before the audit was begun he, with defendant, checked the latter's records as Treasurer. Asked what, if anything, was said by defendant about the shortage, he replied: "He said the shortage wasn't as much as it showed."
Frederick S. Craig, an experienced certified public accountant, audited the books, assisted by one Gibson, his employee. His testimony tends to show that he made a thorough examination and audit of the records, papers and files of the office. He was examined and cross-examined at great length. He testified that the result of his audit showed that defendant as Treasurer had net cash to account for as of date July 12, 1928, amounting to $ 68,226.41, and that he had actual cash in bank amounting to $ 38,996.10, and that there was $ 29,230.31 cash not accounted for; and that as to the item of delinquent tax money between May 1, 1927 and April 30, 1928, the audit, based upon delinquent tax records for that period, revealed that the correct amount with which defendant as Treasurer should...
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