State v. Raedeker
| Decision Date | 06 July 1932 |
| Docket Number | Case Number: 22862 |
| Parties | STATE v. RAEDEKER. |
| Court | Oklahoma Supreme Court |
¶0 1. Counties--Proceeding to Remove County Commissioner--Duty of Court to Withdraw From Consideration of Jury Counts of Accusation not Supported by Evidence.
Where, in the trial of an accusation returned by a grand jury against a county commissioner, there is no evidence whatever to sustain the allegations of the accusation as to certain counts thereof, it is the duty of the trial court upon request of defendant to withdraw from the consideration of the jury such counts of the accusation. The manner or form of withdrawal is not material.
2. Same--Sufficiency of Evidence Indicating County Commissioner Voted to Pay Nepotic Claim--Direction of Verdict of not Guilty Held Error.
In the trial of an accusation of a grand jury against a county commissioner wherein it is charged that said county commissioner willfully, knowingly, and wrongfully authorized and voted to authorize the payment of claims against the county for work, labor of a continuous nature done and performed by an employee who is related to another member of the board of county commissioners within the prohibited degree, where the evidence shows that the defendant member of the board was present at the beginning of each session at which such claims were allowed and that no record was made of how each individual member voted on such claims and that such claim was approved by the board of county commissioners, and the record does not show a negative vote thereon, and there is evidence tending to show that the defendant at the time had knowledge of the relationship between the employee and such other member of the board, the fair presumption is that the defendant charged was present and authorized or voted to authorize the payment of such claim, and in such circumstances it is error to direct the jury to return a verdict of not guilty.
3. Counties--Invalidity of Contract Made by Only One County Commissioner--Other Commissioners not Accountable Unless Consenting.
A contract of agreement involving the property of the county made with a third party by one member of the board of county commissioners alone and without any knowledge on the part of other members of the board is not a contract of the county and is not binding upon the county, nor on the other members of the board, nor are the other members responsible or accountable therefor unless they consented thereto.
4. Same--Commissioner Responsible for His Own Acts Alone.
A member of the board of county commissioners is responsible for his own acts and not for the acts of the other members of the board unless such acts are performed with his knowledge and consent. Myers v. State, 37 Okla. 273, 278 P. 1106.
Appeal from District Court, Payne County; Gaylord R. Wilcox, Assigned Judge.
Action by the State against J. H. Raedeker. Judgment for defendant, and the State appeals. Affirmed in part and reversed in part.
Ernest F. Jenkins and J. M. Springer, for plaintiff in error.
Thomas A. Higgins, for defendant in error.
¶1 The proceedings in error herein are brought by the state to review the action of the district court of Payne county in directing a jury to return a verdict of not guilty in the trial of an accusation presented by a grand jury wherein Ed T. Thatcher, A. C. Holbrook, and J. H. Raedeker, as county commissioners, were jointly accused in ten accounts of maladministration in office, and wherein defendant in error, J. H. Raedeker, was tried separately.
¶2 The third to seventh counts, inclusive, charge a violation of section 1654, C. O. S. 1921, in that in each case the defendants while acting as such county commissioners did willfully, knowingly, and wrongfully authorize the drawing of a warrant of Payne county for payment out of the county highway fund of said county, the salary and wage of one Roy Clark for road work done by him of a continuous nature, and that said Roy Clark was at all times mentioned in the accusation related to the said A. C. Holbrook within the third degree of affinity, he being a brother-in-law of said A. C. Holbook, which the said Ed T. Thatcher, A. C. Holbrook and J. H. Raedeker at all times mentioned in the accusation well knew.
¶3 The first and second counts charge substantially the same offense, except it was charged the warrants were in fact authorized to be drawn payable to one Fred Emerson, but were intended to and did in fact cover the wages and salary of said Roy Clark.
¶4 The eighth count charges that the defendants, including Raedeker, while acting as such county commissioners, knowingly, wrongfully, illegally, and unlawfully allowed and permitted and authorized one J. L. Nugent to hire and rent out certain machinery and equipment, consisting of a tractor and pile driver, the property of Payne county, to the Tidal Refining Company, whereby said Nugent received about $ 500 for the use thereof, and without compensation to Payne county, and that said machinery and equipment were taken out of Payne county and the work there done for the Tidal Refining Company, a private corporation.
¶5 The ninth count in substance charges defendants with having rented a certain grader belonging to the county to one E. L. Hert for use in the performance of private work done by Hert, and with having furnished a driver or drivers for said tractor who were paid by the county, all for a period of about 30 days at the rate of $ 25 per day. And with neglecting and failing to collect the money therefor or to account to Payne county for the use of said tractors and the wages of said driver or drivers.
¶6 Count No. 10 need not be considered, since it is conceded by the plaintiff in error that there was not sufficient evidence to sustain same and it was so conceded at the trial.
¶7 When the cause was set for trial, the case as to defendants Holbrook and Thatcher had been disposed of and the cause proceeded to trial against defendant Raedeker alone.
¶8 At the close of the state's evidence defendant moved the court to direct a verdict of not guilty as to each of the first seven counts upon the ground that the evidence wholly failed to prove the allegations of the accusation and for the further reason that the evidence wholly failed to show any knowledge upon the part of Raedeker that Clark was a brother-in-law of Holbrook until about December, 1930. Defendant also moved separately for a directed verdict as to counts 8 and 9, upon the ground that the evidence wholly failed to in any way connect Raedeker with the matters and things therein charged.
¶9 The evidence as to counts 1 to 7, inclusive, conclusively shows that Roy Clark is a brother-in-law and within the prohibited degree of relationship of Commissioner Holbrook, and was employed originally to operate a tractor upon the county highways of Payne county before Holbrook went into office as county commissioner, and continued in such employment practically all of the time until about February 28, 1931.
¶10 With one exception the county pay roll for county highway employees was made out semi-monthly showing the name of each employee, the time employed, and the amount earned by each, and in each instance the pay roll contained the certificate of the county engineer verified before the county clerk to the effect that the several claims embraced in the pay roll were incurred in construction work designated and conducted under his supervision and that the respective amounts claimed were true and correct. The name of Roy Clark did not appear on the pay roll from the first of the year 1930 until the first half of December of that year. The evidence does show that for the month of July, 1930, his wages, covered by count 1, were included in a warrant issued to Fred Emerson, fellow workman. The same is true as to the last half of October, 1930, covered by count No. 2. Count No. 7 appears to be based upon alleged payment of Clark's wages for the last half of November, 1930, but no pay roll covering that period appears in the record and there is nothing to show that Clark worked for the county during said time or that any claim was presented covering that period, either in the name of Clark or Emerson. In the claims covered by counts Nos. 4 to 7, inclusive, the name of Roy Clark appears upon the pay roll. The uncontradicted evidence is that Clark worked at all times in commissioner district No. 3 and under the exclusive supervision of Commissioner Holbrook or Thatcher, and that Raedeker's district was 1 and 2.
¶11 The evidence further shows that Raedeker and Clark were strangers to each other, and that Clark had never known or seen Raedeker until about December 9, 1930, at which time, a charge was filed in the county court against Raedeker charging the crime of nepotism for having authorized payment for Clark's services for the month of July, 1930. At the trial it was apparently conceded that Raedeker did not have notice or knowledge of the relationship between Holbrook and Clark until after December 9, 1930. After the prosecution rested, the defendant raised the question that the evidence failed to show any knowledge upon the part of Raedeker of the relationship between Clark and Holbrook. The record then shows the following:
¶12 The information against Raedeker was then introduced showing it was filed in the county court December 9, 1930. An appearance bond given by him was also introduced in evidence showing it to have been filed and approved on December 10, 1930.
¶13 There was therefore no evidence whatever reasonably tending to prove the allegations of the accusation as...
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