Opinion
No. 29738.
April 25, 1932. Suggestion of Error Overruled June 6, 1932.
1. EMBEZZLEMENT.
Evidence that treasurer of building and loan association drew check of association and indorsed payee's name and had bank credit amount to his individual account and applied money to his own use established embezzlement as against contention embezzlement was not of money.
2. EMBEZZLEMENT.
In embezzlement prosecution, it was immaterial that defendant's acts in respect to check payable to another tended to establish forgery or another crime.
3. INDICTMENT AND INFORMATION.
That auditor carried transcript of his audit of books kept under defendant's supervision before grand jury, and testified regarding what audit and transcript disclosed, held not ground for quashing indictment for embezzlement.
4. CRIMINAL LAW.
Where intricate accounts are to be inquired into, person making compilation of facts disclosed by records may be introduced as witness to explain records in evidence.
5. JURY.
That sheriff in jurors' presence consulted with prosecuting attorney on qualifications of tendered jurors did not require quashing of trial panel and entering of mistrial.
6. COURTS.
Where defendant, on bail, was arrested during trial under warrant issued by federal court and put in jail, state court was not ousted of its jurisdiction to proceed with trial.
7. EMBEZZLEMENT.
Where transactions are all of series in scheme devised by accused for end of embezzling from employer, all related transactions are admissible.
8. EMBEZZLEMENT.
Defendant's guilt of embezzlement held for jury.
9. CRIMINAL LAW.
Court's action in discretionary matters cannot be used as ground for reversal, unless it be manifest there has been palpable abuse of discretion.
APPEAL from circuit court of Forrest county. HON.W.J. PACK, J.
Currie Currie, of Hattiesburg, and Gardner, Odom Gardner, of Greenwood, for appellant.
The appellant was denied his constitutional right to be informed as to the nature of the charge against him. There was nothing in the indictment to inform the appellant of the cause and nature of the accusation other than embezzling the total sum of money, he had no information as to what transactions were involved, and he was unable to intelligently prepare his defense without additional information. The appellant was deprived of his rights guaranteed to him under both the state and federal constitutions, which require that the accused shall be informed of the nature and the cause of the accusation.
Article 6, Amendments to Federal Constitution; sec. 26, Miss. Const. 1890.
United States v. Potter (C.C. Mass. 1892), 56 Fed. 83, 89 (1894), 15 S.Ct. 144, 155 U.S. 438, 39 L.Ed. 214; U.S.C.A. Const., par. 2, p. 577.
The provision as to the nature and cause of the accusation is intended to secure to the accused such a specific description of the offense as will enable him to make preparation for his trial, and also such identification of the offense that he may be insured against a subsequent prosecution therefor.
Noonan v. State, 1 S. M. 562; Murphy v. State, 24 Miss. 590; Girard v. State, 25 Miss. 469; Riggs v. State, 26 Miss. 51; Norris v. State, 33 Miss. 373; Newcomb v. State, 37 Miss. 383; Williams v. State, 42 Miss. 328; Riley v. State, 43 Miss. 397; Thompson v. State, 51 Miss. 353.
A bill of particulars may be required in all cases in which the indictment is general in its terms, and the bill should at least state from what person the money alleged to have been embezzled was received.
11 Wharton on Criminal Law (11 Ed.), par. 1295.
The court erred in refusing to allow us to develope testimony to the effect that the Kirchmann report or audit was freely used in the grand jury room. An examination of the audit discloses that it contains conclusions, arguments, and statements as to illegal transactions, all of which would be calculated to prejudice the grand jury against the appellant.
State v. Owen, 156 Miss. 487, 126 So. 25.
The appellant did not have a fair and impartial trial.
The jury was hand-picked in its last analysis. We do not charge corrupt motives on the part of the sheriff or the prosecution. In fact, we do not believe that there was any fraud. Yet the procedure followed is so dangerous that we believe it should be condemned by this court for that reason alone, and for the further reason that the rights of the appellant were evidently prejudiced because of the method followed. The facts briefly are these: The sheriff was in sympathy with the prosecution and actively assisted the prosecution in the selection of the jury, retired to a room in front of the jury, and conferred with the prosecution relative to its challenges, all of which the jury could observe from the jury box. The members of the panel understood fully that the sheriff was in sympathy with the prosecution. It is common knowledge that the sheriff is one of the most influential men in the county.
The state ought not to be allowed to take such an undue advantage of the accused.
Rhodman v. State, 153 Miss. 15, 120 So. 201.
The appellant was convicted on incompetent evidence. The court at first over our objection permitted Kirchmann to testify that he had checked the records of the Building Loan Association and found a shortage in Simmon's account. Subsequently the court on reflection reversed its ruling and instructed the jury not to consider Kirchmann's testimony on this point. Later the court again permitted Kirchmann to testify to the same thing over our objection. The court in attempting to assist the district attorney in making his record directed that Kirchmann's opinion be given as to the shortage, based on the books and records of the company "that had been introduced in evidence." This did not help the situation. It was incompetent first because it was concerning a matter which under the rules of evidence cannot be established by opinion evidence; second, it was a conclusion of fact pure and simple and invaded the province of the jury.
State v. Nevada Central Railroad Company, 113 A.S.R. 834; Whitlock v. State, 6 So. 237; Slayden v. State, 102 Miss. 101, 58 So. 977; Dedaux v. State, 125 Miss. 326, 87 So. 664; 16 C.J. 585, 588; Underhill on Criminal Evidence (3 Ed.), par. 150; 1 Wharton on Criminal Evidence (10 Ed.), par. 30.
An indictment was pending against appellant in the same court charging appellant with forging the Ladner check. Yet the state was allowed to show such forgery in its effort to establish the charge of embezzlement. The evidence admitted as to other offenses, we respectfully submit, was inadmissible and must reverse the case.
The appellant was entitled to a peremptory instruction.
We take it that it is not necessary to cite authorities on the question that the indictment must describe the property or thing embezzled. There is a total variance between the state's proof and the indictment.
It is our contention that appellant in any view of the case is not guilty of embezzlement. Under the proof submitted by the state, if conceded to be true, if the appellant is guilty of any crime, it is that of larceny or false pretense and not embezzlement.
Embezzlement differs from larceny in that it is the wrongful appropriation or conversion of property where the original taking was lawful, or with the consent of the owner, while in larceny the taking involves a trespass, and the felonious intent must exist at the time of such taking.
20 C.J. 410; 2 Wharton on Criminal Law (11 Ed.), par. 1297; pars. 1205 and 1274, of 2 Wharton's Criminal Law (11 Ed.); Watson v. State, 36 Miss. 592; Beatty v. State, 61 Miss. 18; Moore v. United States, 160 U.S. 269, 40 L.Ed. 423, 16 Sup. Ct. 294, 10 Am. Criminal Rep. 283; Grin v. Shine, 47 L.Ed. 130; People v. Kirk, 32 C.L. App. 518, 163 P. 696; Boswell v. State, 56 So. 21; United States v. Harper, 33 Fed. 474; State v. Culver, 5 Neb. 238, 97 N.W. 1016; 2 Words and Phrases 2d; 3 Words and Phrases 251, 252; Spegiel v. Levine, 147 N.Y. Supp. 78, 81, 161 App. Div. 764; 3 Words and Phrases (3 Series), 175-177.
The authority quoted amply sustained our quotation that the appellant is not guilty of embezzlement under the evidence in the case.
Commonwealth v. Barry, 124 Mass. 325; People v. Miller, 169 N.D. 339, 62 N.W. 418.
The state declined in open court to elect or to inform the appellant under which indictment it would put him to trial first. Whereupon the appellant announced to the court through his attorneys that in that situation he would demand his statutory rights to have the cases called and tried in the manner, in which the same appeared on the docket of the court. When the court declined to require the state to elect under which indictment it would try the appellant first, and when the state declined on the request of the court to inform the appellant on which indictment it would try him first and when the state announced that it was ready for trial on any one and all of said nine indictments, and when the trial day had been announced by the court, all nine of said indictments stood on the docket of the court subject to call and trial on that day, and the appellant was in utter and total ignorance on which of said indictments he would be called upon to defend on that day and was at a total loss to know which one of said indictments to prepare to defend, and was put to the extreme and impossible task of undertaking to prepare his defense to each one and to all nine of said indictments, and being left in this state of peril and it being physically impossible for him to prepare his defense to each one and to all of said nine indictments in one day, or on the same day, the appellant and his attorneys pursued what reasonably appeared to them to be the only course for them to persue under the circumstances, and they prepared to defend said indictment number 1768, which was the first indictment against the appellant on the docket of the court.
When the day set for trial arrived the state for the first time announced that it would try the appellant first under said indictment numbered 1773, and the appellant objected to being put to trial under said indictment on the ground that there were nine indictments against him, all of which had been set for trial on that day, and that the court had declined on a prior date on a motion for that purpose to require the state to elect on which indictment it would try him first, and that the state had refused on the demand of the appellant and on the request of the court on a prior date to inform the appellant on which of said indictments it would try him first, and it being impossible for the appellant to prepare his defense to each and all nine of said indictments and the state having announced on a prior date in open court that it was ready in all nine of said cases, the appellant insisted on his right to be tried on said indictments, in the order in which the same appeared on the docket of the court, and announced to the court that he had prepared his defense to the first of said indictments, No. 1768.
The appellant was by the court put to trial under said circumstances on said indictment No. 1773.
The appellant was given absolutely no prior notice of the nature and causes of these complaints. He resorted to every remedy known to the law to get information of what the state had charged him with and for what is proposed to try him. He was blindfolded and put to trial. He was put to the ordeal of a successful answer without knowledge of the charge against him. It was worse than the cruel and ancient ordeal of walking blindfolded and barefooted over the red hot irons without burning a foot, to establish innocence. There the miserable accused had the sense of feeling to guide him in placing his foot.
It was a gross injustice to the appellant and a violation of his plain statutory rights under the circumstances to put him to trial first under said indictment No. 1773.
Sec. 480, Vol. 1, Miss. Code 1930, Anno.; sec. 481, Vol. 1, Miss. Code 1930, Anno.
Unless the state has proved that the appellant's possession of the money was lawful and with the consent of the owner, his appropriation, misuse or conversion of it was not embezzlement. The state's evidence proves the exact and precise contrary. It was not lawful, it was not with the consent of the owner, it came, according to the state's evidence, into his hands or possession by forgeries, false pretense, and criminal frauds. Under the state's evidence no court could hold that his possession of the money was rightful, lawful, or with the consent of the owner. No court is at liberty to ignore the clear distinction between embezzlement and larceny — the distinction is manifest, patent in this case — nor may a person be indicted for embezzlement and convicted on proof showing larceny of any offense.
People v. Dougherty, 143 Cal. 593; Johnson v. State, 68 Tenn. 279; Barton v. The People, 78 N.Y. 377; People v. Hemple, 87 So. 277.
W.D. Conn, Jr., Assistant Attorney-General for the state.
The indictment was drawn under section 889 of the Mississippi Code of 1930.
The indictment charged a statutory offense, and the language of the statute on which it is predicated is sufficiently specific to give notice of the acts made unlawful and sufficiently exclusive to prevent its application to other acts.
Richburger v. State, 90 Miss. 806, 44 So. 772; Sanders v. State, 141 Miss. 289, 105 So. 523.
Appellant's motion for a continuance was overruled. He assigns this as error. The motion was based on the theory that the indictment against appellant failed to sufficiently inform him of the nature and cause of the charge against him and that appellant was entitled to time in which to investigate the correctness of the audit handed his attorney before going into the trial, which audit the state largely relied on for conviction. The granting of continuances is so largely within the discretion of the trial court that a refusal to grant a continuance is very rarely a ground for reversal. There must be an abuse of discretion on the part of the trial court to work a reversal.
Sanders v. State, 141 Miss. 289.
This court has repeatedly held that it is not for the court to inquire into the competency of testimony before the grand jury.
Kyzar v. State, 125 Miss. 79, 87 So. 415.
It is the subjection of the grand jury to outside influence and outside parties during their deliberations that vitiate indictments returned by grand jurys. This is what the Owens case held and it cannot be stretched to where it applies to the case at bar. Investigations of the grand jury should be confined strictly to testimony of witnesses having knowledge of the facts touching matters under inquiry. This was the holding in the Owens case and to extend the doctrine laid down in that case to cover the case here would be carrying it ad absurdam.
This record shows that the jury was impaneled in the regular way, as provided by law. There may have been a little impropriety in the manner in which the sheriff was consulted by the district attorney. But, certainly, inasmuch as nothing is shown whereby appellant was prejudiced in the trial of his case, and admitted that there were no corrupt motives involved and that he believed there was no fraud, this court will not hold that the trial court was in error in refusing to sustain his motion to quash.
A shortage existing in a set of books covering an extensive period of time and involving numerous and voluminous transactions can be shown by expert testimony.
When accounts are numerous the convenience and expedition of trials demands the admission of the testimony of competent witnesses who have persued the entire mass and will state summarily the net result.
State v. Nevada Central Railroad Company, 113 Am. S.R. 834; 2 Wigmore on Evidence, sec. 1230; Boston W.R. Co. v. Dana, 1 Gray 83, 89, 104.
As an exception to the general rule that on the trial of persons accused of crime, proof of distinct, independent offenses is not admissible, evidence of other acts of embezzlement committed at or about the same time with the principle offense is competent to show guilty intent, or a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others, or to identify the person charged with the commission of the crime, or the absence of mistake or accident.
9 R.C.L. 1295, sec. 41.
Appellant's next contention is that he was entitled to a peremptory instruction, first, because of a variance between the indictment and the proof, in that the indictment charges that appellant "did collect and receive and take in his possession the sum of twenty-four thousand six hundred twenty-nine dollars and thirty-five cents in good and lawful money of the United States," etc., and that the proof offered by the state showed that appellant embezzled checks or choses in action and not cash, not money, as laid in the indictment. This contention is met squarely by the decision of this court in the case of Richburger v. State, 90 Miss. 818.
The difference between larceny and embezzlement and false pretenses from all authorities, lies in the nature of the possession, that is, whether the property is wrongfully possessed or whether it is rightful. And as herein above pointed out, it is the contention of the state that appellant did have the care and custody of the funds of this corporation just as much so as if he had such funds in his pocket. The by-laws of the company gave him the right to issue checks for all corporate purposes, and these, with the exception of the checks in connection with the proof of alteration of records, seem always to have been counter-signed by the proper officers.
It is the duty of a treasurer to guard the funds of the corporation and if, instead of this, he misappropriated its funds, it is embezzled, and not larceny or any other crime.
Clarke v. Minge, 65 So. 832.
Argued orally by Neil Currie and H.T. Odom, for appellant, and W.D. Conn, Jr., Assistant Attorney-General, for the state.
Appellant was indicted and convicted of embezzlement. The proof in behalf of the state involved seventeen items or transactions, and appellant assigns forty-seven errors as having been committed by the trial court. The record in the case comprises four large volumes. Obviously, in order to bring an opinion within a reasonable length, we must summarize and combine, rather than deal with the assignments of error in detail.
Out of the seventeen items or transactions produced in evidence by the state, we select and will state one of them as typical or illustrative of the others. From the year 1925 to December, 1930, appellant was secretary and treasurer of the Hattiesburg Building Loan Association. The proof shows that appellant was in fact the active and responsible manager of the affairs of said corporation. The course followed by the association in many, if not most, of its loans was that in making a loan for the building of a home, appellant, in behalf of the association, would approve the plans of the structure and and supervise its erection from time to time, and when completed the association would, at the hands of appellant, issue its checks direct to those who had furnished labor or material for the building, up to the amount of the agreed loan, which was then or theretofore secured to the association by a deed of trust on the land and improvements.
An arrangement of the kind stated had been made with the association in the early summer of 1927 by one Willis Ladner, and for the erection of a home to cost two thousand two hundred fifty dollars. The building was constructed and had become substantially finished on July 19, 1927. On that date Ladner and his wife executed and delivered unto the Hattiesburg Building Loan Association a deed of trust for two thousand two hundred fifty dollars and four days later the association issued sixteen separate checks to the various materialmen and laborers and others who had furnished material, labor, and other services towards the erection of the Ladner house, and also an additional check to said Ladner for one hundred forty-three dollars and two cents. These seventeen checks amounted in the aggregate to exactly two thousand two hundred fifty dollars, the amount of the Ladner loan secured as aforesaid. All these checks were drawn on the First National Bank, by the Hattiesburg Building Loan Association, and were signed for the association by appellant as treasurer and were countersigned by the president of the association, and all of them were presented to the bank by the respective payees of these checks, and the bank thereupon paid to the payees out of the funds of the association the full amounts of each and all of the checks, amounting, as said, to the aggregate of the loan of two thousand two hundred fifty dollars.
On the very same day, however, to-wit, on July 23, 1927, appellant drew another check of the association signed by him as treasurer, and payable to Willis Ladner, in the sum of two thousand two hundred fifty dollars. This check was procured by appellant to be countersigned by the vice president of the association, and not by the president who had countersigned the seventeen other checks; the reason of this being obvious. Appellant thereupon without the knowledge or authority of Ladner wrote or signed the name of Willis Ladner as an indorser on the back of said check, and appellant having indorsed the check, by the writing of his own name on the back thereof, he presented the check on that day to the bank and procured the bank to credit the individual account of appellant with said sum, and to make the corresponding debit in the deposit account of the association in the bank and on the same day from the deposit thus converted to his individual credit, appellant checked out and applied to his own use and benefit, nearly fifteen hundred dollars of the money.
There is no contradiction of the facts above stated; the facts in respect to the Ladner transaction are undisputed. But appellant argues that they are not sufficient to constitute the crime of embezzlement, for three reasons: First, because, as he contends, the facts tend to establish the crime of forgery or larceny or false pretense and not embezzlement; second, there was no embezzlement of money, as the indictment charges, but only of a portion of a deposit to the credit of the association in bank; and, third, that the embezzlement was only a check and not of money. The last two contentions were made, and were overruled by the court, in Richburger v. State, 90 Miss. 806, 44 So. 772. And as to the first, it is enough to say that it is immaterial that the acts of appellant in respect to the check for two thousand two hundred fifty dollars, payable to Ladner may have involved another crime, since it is plain that what appellant did in the handling of that check was merely a means or an instrumentality fraudulently used by him to embezzle and convert to his own use the funds of his principal and which had been intrusted to him by virtue of his employment.
Appellant contends that the indictment is insufficient and that his demurrer thereto should have been sustained because, as he argues, the presentment does not specifically set out the acts and wrongs charged; that it fails to set out the cause and nature of the accusation. The case on this point falls within the rulings of the court in Richburger v. State, supra, and Sanders v. State, 141 Miss. 289, 105 So. 523, and the latter case also expressly overrules the contention made herein by appellant that the court should have sustained his motion for a bill of particulars.
Appellant moved to quash the indictment on the ground that the principal evidence before the grand jury upon which the indictment was found was that of an expert accountant from the state auditor's office, who had made an audit of the books of the Hattiesburg Building Loan Association, and who testified before the grand jury touching the results of his examination of said books. The auditor carried a transcript of his audit before the grand jury, and testified as to what the audit and transcript disclosed. Appellant contends that this witness gave only hearsay, or opinion, evidence, and that this is insufficient upon which to base an indictment, and appellant relies on State v. Owen, 156 Miss. 487, 126 So. 25. These books had been kept under the immediate direction and supervision of appellant as secretary of the association, and the evidence furnished by them was competent matter for grand jury action. We have recently held in Crawford v. State (Miss.), 138 So. 589, that: "When intricate accounts and voluminous business records are to be inquired into and the facts upon particular issues said to be disclosed by said records are to be adduced in proof, it must be done by way of the previous preparation, by a competent person, of definite and pertinent schedules, tabulations, or other suitable and practicable compilations, and the person who has made the compilations must be introduced as a witness so that the records in evidence may be explained and the pertinent parts thereof definitely and cogently pointed out, and so that cross-examination may be permitted to search into the soundness of the compilations or schedules and of the conclusions sought to be established." See, also, 2 Wigmore on Evidence, sec. 1230; Boston W.R. Corp. v. Dana, 1 Gray (Mass.) 83. Since the rule is as above stated in reference to trials, it follows that an observance of the same rule before the grand jury will protect the indictment from attack on the ground here relied on by appellant, even if the details of this matter could be gone into at all on a motion to quash, as to which we express no opinion here. The decision above quoted disposes also of the objection made to the auditor's testimony in the trial.
Appellant moved to quash the trial panel and to enter a mistrial because the sheriff, in the presence of the jurors during the court of the selection of the jury, would frequently retire to a room in full view of the jurors, and would consult with the prosecuting attorneys on the qualifications of tendered jurors, and because after the regular panel had been exhausted the sheriff called salesmen and thereupon repeated his course of conferring with the attorneys for the prosecution. It is not charged that any corruption or corrupt motives inspired the conduct of the sheriff, or that he conferred or in any way directly communicated with any juror. In fact, the evidence in the record on this point is in the negative on the issues last mentioned.
It has long been the custom and common practice in this state for the sheriffs to counsel with and aid the district attorneys in the selection of jurors. Without this aid and counsel the district attorney in many counties would be seriously hindered, if not thwarted, in the prosecution of crime. Every man who has had sufficient experience and observation to make an intelligent juror knows that the sheriff, as the chief law executive officer of his county, is expected to perform the services above mentioned, and that he does it as a matter of official obligation. And since that is what is expected of the sheriff, no juror would likely be influenced by what the sheriff does in that regard. What the sheriff did in this case was within the commonly observed requirements of his official duty, and the trial is not subject to criticism for what he thus did. Let us imagine, if we can, the picture of a sheriff abandoning the district attorney and engaging in busy consultations, in open view to all, with counsel for the defendant in the impaneling of a jury in a criminal case. Certainly the sheriff will not and must not take part in the procurement of an unfair juror for either side, but it is his duty to see that the district attorney is advised against a juror whom he knows or has reason to believe would be unfair to the state. Counsel for defendant are always well prepared and well able to keep off jurors who are objectionable to the defense, but in most cases the district attorney must rely on the sheriff in the matter of fairness of the jury, as respects the interest of the state.
During the trial of the case, appellant was arrested by the sheriff under a warrant issued by the federal court, and which warrant the sheriff had been authorized by said court to serve. Appellant who had theretofore been on bail was put in jail by the sheriff, and during the remainder of the trial appellant was brought from the jail to attend the sessions of the trial in the same manner as in the case of a defendant who had no appearance bond or bail. Appellant thereupon filed special pleas and a motion under which appellant insisted that, by reason of the facts mentioned, the state court had been ousted of its jurisdiction and could proceed no further with the trial. No applicable controlling principle is pointed out to us by appellant, nor is any authority cited, by which we would be warranted in sustaining the stated contention.
The indictment charged appellant with embezzling the sum of twenty-four thousand six hundred twenty-nine dollars and thirty-five cents. This sum is made up of the seventeen items or transactions, hereinbefore referred to, all of which were placed in evidence by the state. Appellant contends that these different items were of disconnected crimes, and he relies on the well-known rule that when a defendant is on trial for one offense the state cannot aid the proof against him by showing that he has committed other offenses. Whitlock v. State (Miss.), 6 So. 237. We might dismiss this contention with the observation that since the conviction of appellant was inevitable, under the facts proved, and not disputed, in the Willis Ladner transaction, no harm was done appellant by the admission of testimony in respect to the other items. Starling v. State, 90 Miss. 255, 43 So. 952, 13 Ann. Cas. 776; Garrard v. State, 50 Miss. 147, 153. We prefer, however, to rest our conclusion, in rejecting this assignment of error, upon the rule that where the transactions are all of a series in a common and interrelated scheme or plan or system, devised and executed by the accused for the one end of embezzling from his employer, then all of the related transactions may be received in evidence. Appellant admits the rule of law as last above stated, but denies the applicability thereof to the facts of this case. Upon a careful examination of this record and of the several items or transactions involved, we are of opinion that the case falls well within the stated rule in respect to a common and related scheme or system.
What we have above said is enough to dispose of appellant's contention that he was entitled to a peremptory instruction, and of the criticism made in regard to the instructions which were granted or refused. All the other assignments are in respect to matters which were addressed to the sound discretion of the trial court and which cannot be used as a ground of reversal unless it is made manifest to us that there has been a palpable abuse of that discretion. Hemingway v. State, 68 Miss. 371, 401, 8 So. 317. No abuse of discretion is made manifest on this record, and hence comment by us in respect to those discretionary matters would be of no value in an opinion addressed to them in detail in this case.
Affirmed.