Gibson v. State ( 1881 )

■ Cooper, J.,

delivered the opinion of the court.

The defendants could not by a demurrer question the authority by which the suit was instituted. A demurrer presents only a question of law for the decision of the court. The issue attempted to be raised by the defendants was one of fact, viz., whether the attorney who brought the action was authorized so to do by the agents of the State. The demurrer was therefore properly overruled.

No error was committed in the refusal to grant a continuance on the application of the defendants. Considering the application as if it had been formally presented by a written petition, sworn to, the continuance should have been refused. The facts stated by the defendants, applying for the continuance, show that they had been guilty of negligence in not having taken a subpoena for their co-defendant, whose testimony they desired, in time to have service thereof made before the day when by the rules of practice the case was triable.

The motion for a new trial should not have been granted, in order that the defendants might thereafter procure from the office of the auditor of the State a statement of the condition of the accounts of their principal. The account, as it appears on the books of the auditor’s office, is a matter of public record, required by law to be kept, and the defendants by the exercise of ordinary diligence might have procured a copy thereof before the trial of the cause.

There was no error in excluding, when offered in evidence by the defendants, the blank privilege licenses, which had been furnished by the auditor to the sheriff.. If the suit was based on an account against the officer, in which these licenses appeared as a charge against him, the evidence would have been pertinent ; but as they are not charged against him in the account sued on, the fact that they still remained in his hands could not in any degree tend to show that he had not collected, or had paid over the amounts for which suit was brought.

The court below, at the instance of the State, instructed the jury that, “ in order to recover in this suit, the Staté is only bound to prove that Johnston, as such tax collector, collected the several sums sued for, and is not bound to prove that he failed to pay over to the State of Mississippi; and it is incumbent on the defendants to prove to their satisfaction that the taxes were paid over, and he receipted for the same.” The defendants asked the court to instruct the jury that “ the burden of proof in this case is upon the State, and unless the plaintiff has shown by a preponderance of evidence to their satisfaction that the defendant, Johnston, collected the particular amounts sued for, and failed to pay over the same to the State treasury, then they will find for the defendants,” which instruction the court refused to give as asked, but modified it by adding thereto the words, “ but in determining the case the jury must take into consideration all the evidence ; and any admission or remission by Johnston, if satisfactorily established that he had not paid over the money collected, is competent to establish the fact that he has not x>aidover the money.” These instructions were in direct conflict with each other, and ought not to have been both given, but unless the error is one of which the appellants have the right to complain, the verdict ought not to be disturbed. It may be admitted that, ordinarily, the burden of proof rests upon the plaintiff, to establish all the material allegations of his declaration, even though they be of a negative character, and therefore that the instruction asked on the part of the defendants ought ordinarily to be given, yet we think, under the peculiar facts shown in this case, the instruction given for the State contained no error of which the appellants can complain.

Chapter 10 of the Code of 1880, “ An Act in relation to Public Revenue,” went into operation on the 1st day of July, 1880, and was therefore the law of the State when the collections sued for were made by the defendant Johnston, as sheriff of Hancock County. Sections 517, 518, and 519 are as follows: “Each tax collector shall enter in a well bound book, kept for the purpose, the date and number of each tax receipt issued by him, the name of the person paying taxes, and the amount paid, which entry shall be made at the time of issuing the receipt, and the amount of the aggregate of such receipts,'entered on one page, shall be shown and carried foi’ward to the next page, and so on, so that the amount collected can be seen at any time by an inspection of such book. Each collector shall also enter in said book, in immediate connection with said other entries, the amount of his payment of taxes to the State and county treasurers respectively, giving the date of such payment, so that it can be seen by reference to said book, whether the payment made to the State and county treasurers embraced all that he had collected, less his commissions ; and said book shall at all times be subject to the inspection of any State or county officer, or agent, or any citizen of the State. If any tax collector shall fail to keep such boob, or to make tlie required entries, or shall make any false entry therein, or shall refuse to exhibit such book for the examination of any one entitled thereto, he shall be guilty of a misdemeanor, and on conviction shall be punished accordingly.” Sect. 518 : “ It shall be the duty of each tax-collector to present the book required by the last section to be kept by him, to the board of supervisors when required ; and upon final settlement with the auditor of public accounts, said book shall be produced before him, and he shall indorse on it the fact, and the date of such presentation, and that he has examined the entries it contains of payments made to him of State taxes, and that such entries are correct; and such book shall remain in the office of the tax collector, as a record of the office, when he goes out of office.” Sect. 519: “ The book of duplicate receipts for taxes, above provided for, whether filled or not, shall, at the time of making his report to the board of supervisors, on the first Monday of March in each year, be delivered by the tax collector to the clerk of the chancery court, and be received, receipted for and carefully preserved, under such penalties for the non-observance of this requirement as are above provided for failure of either officer to do what is required in reference to such book.”

It was therefore the official duty of the sheriff, to keep in his office the book provided for by said sections, and to deliver it to his successor in office, or to the clerk of the Chancery Court on his settlement with the board of supervisors in March of each year. His failure to do so was a breach of his official bond, for which the sureties, who are defendants in this suit, were liable. The State having proved the collection by the officer of the amounts sued for, introduced evidence of admissions made by him ; that he had not settled with the auditor, and of a promise made by him, a short time before the institution of this suit, to the attorney of the State, that he would satisfy the claim sued on ; and then introduced, as witnesses, the successor iii office of the officer and the clerk of the Chancery Court, each of whom testified that the book so required to be kept was not among the records of their respective offices. The sheriff also testified that, though he knew his predecessor had kept such a book, it was not turned over to him when he took charge of the office. The defendants then were placed in the attitude of being bound for the official acts of Johnston, who had certainly collected the money sued for, and who as certainly had abstracted from the office, of which he was the incumbent, the record which he was required to keep as an evidence of his dealings with the finances of the State; a record, which if properly kept, would have presented at a glance all the collections made by him, and all payments either to the county or the State.

The extent of the presumption which exists against one who suppresses or destroys evidence which could be offered against him, or against an officer who neglects to record, as required by law, a history of his acts, is not well settled by the authorities. In the leading case of Armory v. Delamirie, 1 Strange, 505; 1 Smith’s Lead. Gas. (7th Am. ed.) 636, where the defendant had abstracted a jewel from its setting, and neglected to produce it on the trial, the jury was instructed to find a verdict for an amount equal to the value of a jewel of the finest water. In Blann v. Beal, 5 Ala. 357, which was a qui tarn action against a clerk of-the county court, to recover the penalty given for the illegal issuance of a marriage license, it was said that while ordinarily the burden of proof would be on the plaintiff to establish the fact that the license was issued without the consent of the parent, yet, as by the statute the clerk was required to record such consent,, as evidence of the fact that it had been given, and as it was shown that no record of such consent appeared, the burden of proof was upon the clerk (the defendant) to show that such consent had been given. In Hardon v. Hesketh, 4 H. & N. 175, the defendant refused to-produce in evidence his own deeds, and because of such refusal it was said that the evidence of the plaintiff, which was confessedly insufficient, warranted a verdict in his favor. In the case at bar, the defendant, Johnston, has committed a flagrant wrong; he has abstracted from the records of the office which he held the book that he was required by law to keep for the purpose of exhibiting the condition of his accounts, as the collecting agent of the State, with the auditor, who is the accounting officer of the State. He has unlawfully withdrawn from its proper place of deposit the evidence by which the plaintiff could have readily proved whether he had or had not paid over the collections for which he is sued, and the natural inference is that he has done so because it does not contain entries favorable to himself. To permit any advantage to be thus obtained, either for himself or for his sureties, who are bound by his acts, would be a travesty upon justice.

We therefore do not find it necessary to decide, upon whom the burden of proof was, upon the issue presented ; for, if the burden was upon the plaintiff originally, the evidence of the breach, which was given by the plaintiff, taken in connection with the abstraction of the cash-book by Johnston, abundantly warranted the instruction by the court that the State had made a prima facie case, which ought to prevail in the absence of other evidence by the defendants. It would have been probably more proper for the court to have instructed the jury that the plaintiff by its evidence had made out a prima facie case against the defendants, which they were required to meet, or in default thereof that judgment ought to be given for the plaintiff. . Wharton Evid. § 371. The distinction between such an instruction and one that the burden of proof is upon the defendants is so shadowy, the error (if it is an error) is so slight, that we would be unwilling to disturb a verdict in a case much more doubtful than the one at bar. Conceding the instruction to be wrong, the judgment is so manifestly right on the evidence that it ought not to be disturbed. Tush Ho Yo Tubby v. Barr, 45 Miss. 189; Wilson v. Kohlheim, 46 Miss. 346; New Orleans Railroad Co. v. Burke, 53 Miss. 200.

Judgment affirmed.