State v. Howell , 317 Mo. 330 ( 1927 )

The defendant was convicted and sentenced in the Circuit Court of Reynolds County, under Section 3334, Revised Statutes 1919, on a charge of embezzlement as an officer, November 25, 1925, and appealed.

In November, 1918, the defendant was elected Circuit Clerk andex-officio Recorder of Deeds of Reynolds County, and assumed the duties of his office January 1, 1919. In the autumn of 1923, the State Auditor ordered an examination of the books and records of the appellant's office for the years 1919 to 1922. Henry M. Smith, examiner of county records, for the office of the State Auditor, made the examination. He testified that the defendant's books and records as circuit clerk showed the defendant had collected $2001.76, and had paid into the county treasury $1015.55, leaving a balance of $986.21 unaccounted for. The examiner explained in detail what he found, not only in defendant's books, but in the fee books and other books which he examined in the office of the sheriff and county treasurer.

Defendant denied that he received all the money which the examiner testified was shown by the books, and claimed he accounted for all he received.

I. Appellant challenges the constitutionality of the statute under which he was charged (Sec. 3334, R.S. 1919),Limitations. as affected by the Statute of Limitations (Sec. 3737, R.S. 1919).

Section 3334 provides that if any officer appointed or elected by virtue of the Constitution of this State, or any mortgagee, trustee, executor, etc., shall convert to his own use in any manner, or make away with or secrete any moneys that may come to him by virtue of his office, or by virtue of the trust reposed in him, he shall, upon conviction, be punished "in the manner prescribed for stealing property of the kind or the value of the article so embezzled," etc.

Section 3737, a general Statute of Limitations, provides that no person shall be tried, prosecuted or punished for any felony (other than specified in a previous section), unless the indictment be found or information be filed within three years after the commission of the offense, "except indictments or informations for bribery or for corruption in office may be prosecuted if found within five years after the commission of the offense."

Appellant objects to Section 3334, because it includes in its terms embezzlement by an officer, as well as embezzlement by an administrator or other technical trustee;Classification having classed them together they are offensesof Embezzlements. of the same grade and character, and must be dealt with in exactly the same way.

It is entirely proper for the Legislature to prescribe different punishments for different kinds of offenses, and we know of no authority or principle which would prevent the Legislature from including in the same statute different offenses of the same general character. No different punishments are provided in the section, because all offenders against whom the section is directed are punished the same as persons guilty of larceny. The range of punishment may vary with the gravity of the offense in each individual case.

Appellant's principal argument is directed at Section 3737. He contends that "corruption in office" is a specific term, and does not apply to the offense of embezzlement charged here; that the expression "for bribery or for corruption in office" in Section 3737 means that corruption in office is the alternative for bribery; that the terms are used to mean the sameCorruption thing. The answer to that objection was settled inin Office. the case of State v. Douglass, 239 Mo. 674, l.c. 679, where this court, quoting definitions of corruption in office, held that it included bribery as one form of corruption, and that embezzlement by an official came within the expression "corruption in office," a generic term.

It is further argued that if the offense charged is "corruption in office," the discrimination in Section 3737 denies equal protection of the laws in violation of the Fourteenth Amendment to the Federal Constitution, because it prescribes a different limitation period for bribery and corruption inEqual office from that provided for other offenses whichProtection. are classed with bribery and corruption in office by Section 3334, as of the same class and quality. The rule is that a statute relating to criminal procedure is void as denial of equal protection of the laws, "if it prescribes a different procedure in the case of persons in like situation." [12 C.J. p. 1186.] But that general limitation is subject to legislative discretion in many instances. The Legislature may determine that enumerated offenses do not necessarily affect "persons in like situation." It may provide methods in particular classes of cases, so that persons of certain character may be dealt with under different procedure from that applied to persons of another character for the same offense.

In the case of State v. Douglass, supra, this court had under consideration this very statute, and it was said, 239 Mo. l.c. 680: "The tenure of a great many public offices in Missouri continue for a term of four years; and this statute was doubtless intended to preserve to the State the right to prosecute such officers after their terms expire for such willful and corrupt violation of law as they may have committed while in office."

The court then notes that persons in an office, in charge of books and records which show their dealings, may effectually conceal embezzlements or other malfeasances as long as they have control of the office, and it is only after their terms expire that adequate investigation can be had. So, that situation was sufficient reason for providing a different Statute of Limitations, because officers and non-official trustees are not in "like situation." Appellant appends a labored argument citing cases affecting the equal protection clause of the Fourteenth Amendment, but has cited no case which touches the precise point under consideration here.

II. Appellant assigns error to the action of the court permitting Henry Smith, examiner from the auditor's office, to give the results of his audit of the defendant's books. Smith testified to his experience in examining countyExamination records, stated the amount he found collected by theof Books. defendant, the books from which he got the information, and the books from which he found the amount turned into the county treasury. The evidence was entirely competent. It was the only way in which the jury could be informed of the result of his knowledge. It would be impractical to have a jury examine the books and reach a conclusion. It can only be done with satisfaction by an expert acquainted with the purpose and method of the books. Such testimony is competent. [State v. Findley, 101 Mo. l.c. 223; Headdy v. Wright Tie Co., 262 S.W. l.c. 449.]

III. The County Clerk, W.L. Welch, was offered as a witness by the defendant, and was asked to tell the jury what discrepancy, if any, he found between the circuit clerk's officeProffered and the treasurer's office. The court sustained anProof. objection to the question and the defendant excepted to the ruling. The evidence sought to be elicited by the defendant may have been competent, but the defendant made no offer of proof. We are not apprised by anything in the record that the facts which Welch would swear to were pertinent to the issues. That could be done only by an offer of what defendant expected to prove by the witness. The court cannot be convicted of error in the absence of such an offer. [State v. Roberts,280 Mo. 669, l.c. 679.] There is nothing in the question to indicate that the defendant expected to show the examiner's evidence to be incorrect, or that the answer would reveal facts favorable to the defendant.

The information is attacked, and also the verdict, as insufficient to support the judgment. The information sufficiently charges the offense under the statute, and the verdict is general, finding the defendant guilty as charged in the information. We find no error in the record and the judgment is affirmed. All concur.