State v. Romero.
| Decision Date | 05 April 1928 |
| Docket Number | No. 3290.,3290. |
| Parties | STATEv.ROMERO. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
A conviction for embezzling a sum as county clerk and ex officio clerk of the district court bars further prosecution for embezzling another sum as county clerk and ex officio probate clerk, where the state is unable to show the conversion of any particular sum at any particular time, and relies, under Laws 1923, c. 70, § 1, upon the existence of a total shortage including both sums.
Appeal from District Court, San Miguel County; Armijo, Judge.
J. Lino Romero was convicted of embezzlement, and he appeals. Reversed and remanded, with direction.
A conviction for embezzling a sum as county clerk and ex officio clerk of the district court bars further prosecution for embezzling another sum as county clerk and ex officio probate clerk, where the state is unable to show the conversion of any particular sum at any particular time, and relies, under Laws 1923, c. 70, § 1, upon the existence of a total shortage including both sums.
O. O. Askren, of Santa Fé, for appellant.
R. C. Dow, Atty. Gen., and Frank H. Patton, Asst. Atty. Gen., for the State.
Appellant was convicted of embezzlement under Laws 1923, c. 70, § 1, making a shortage in the money or property for which a public officer is accountable prima facie evidence of guilt. He interposed a plea of former conviction to which the state filed a reply. Evidence was heard by the court, a jury having been waived, and the plea was overruled. This action presents the only question raised on the appeal.
From the facts admitted and proven under the plea, it appears that from an audit of appellant's accounts, as county clerk, made under direction of the comptroller, and completed May 20, 1926, a shortage of slightly over $3,000 was disclosed. Of this shortage $1,330.25 was in the district court fund and $189.08 was in the probate court fund. The balance was evidently in some other fund or funds for which appellant was accountable. While the audit satisfactorily fixed the total amount of the shortage, and apportioned it among the different funds, it was impossible to produce proof of the taking or conversion of any particular amount at any particular time.
The district attorney exhibited two informations against appellant-the one charging, in substance, that from March 1, 1925, to May 31, 1926, he was county clerk and ex officio clerk of the district court of San Miguel county, and by virtue of said office had been intrusted with certain moneys belonging to said county, and that on May 31, 1926, he embezzled therefrom the sum of $1,330.25. The other information was exactly similar, except that appellant's office was described as county clerk and ex officio probate clerk, and the sum embezzled laid at $189.08. Upon the first information described appellant was tried and convicted and judgment pronounced. It is upon the second information described that the present conviction was had and to which the plea was interposed.
The broad question is whether appellant was a second time “put in jeopardy for the same offense.” Constitution, art. 2, § 15. The state suggests that the proper test is whether the first information was such that a conviction could have been had upon the same facts required to support the second. This is a test frequently applied. U. S. v. Aurandt, 15 N. M. 292, 107 P. 1064, 27 L. R. A. (N. S.) 1181. In a case where the only available proof of conversion is a $3,000 shortage in accounts, such proof would sustain a conviction of embezzlement of $189.08 from the county on May 31, as well as an embezzlement of $1,330.25 from the county on May 31. But for one difference in the informations and the proofs, appellant's case would meet the test which the state suggests. The difference is the allegation in the one information of appellant's capacity as ex officio clerk of the district court, and in the other of his capacity as ex officio clerk of the probate court. These different capacities involve the keeping of separate cashbooks and funds, and it was possible to show the amount of shortage in each.
Appellant contends that the unnecessary allegations of the different capacities in which the moneys were received was a mere device to make two crimes out of the same transaction. The state's position is that the conversion of two separate funds is the same as conversion from two separate owners, and that the state had the option, if it was not required, to consider the shortage in each fund as a separate offense.
No case directly in point has been cited. Appellant relies upon State v. Sampson, 157 Iowa, 257, 138 N. W. 473, 42 L. R. A. (N. S.) 967, and the cases collected in the note entitled ...
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State v. Maestas
...The prosecution cannot thus split up into an indefinite number of charges what was in fact but one act and one offense." State v. Romero, 33 N.M. 314, 267 P. 66 (1928). If the defendant had unlawfully possessed 42 controlled substances under Schedule I(A), § 54--11--16, supra, the prosecuti......
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...have been discussed in prior New Mexico appellate decisions. See State v. Allen, 59 N.M. 139, 280 P.2d 298 (1955); State v. Romero, 33 N.M. 314, 267 P. 66 (1928); State v. Klasner, 19 N.M. 474, 145 P. 679 (1914); State v. Boeglin, 90 N.M. 93, 559 P.2d 1220 (Ct.App.1977); and State v. Bolen,......
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...the theft of nineteen calves charged but one taking 'at the same time and place' of the property of several owners. State v. Romero, 33 N.M. 314, 267 P. 66 (1928) involved the embezzling of public money. Two charges were brought on the basis that defendant had two official capacities. Romer......
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...As an example, the prohibition against splitting one offense into many parts for the purpose of multiple prosecutions, State v. Romero, 33 N.M. 314, 267 P. 66 (1928). For a general discussion of the problems involved in defining and applying the concept of double jeopardy see Sigler, Double......