People v. Degraff , 6 N.Y. St. Rep. 412 ( 1887 )

Land on, J.

The original bill presented by the defendant to the board of supervisors for audit in 1881, and his report to the board, were lost. The original records of the board for that year were also lost.

We think the printed copy of the proceedings of the board of supervisors, for the year 1881, was .properly read in evidence under chapter 219, Laws of 1878. That act provides, among other things, that “ Any act * * * or proceeding of a board of supervisors, * * * and any recital of occurrences taldng place at the sessions * * * thereof, may be read in evidence on any trial * * * from a volume printed by authority of the * * * board.” The second section of this act was amended by chapter 328, Laws 1884, so as to make the printed volume properly certified “ the book of records ” of the board, but the first section was not changed. No doubt this book of records would have the force of the original record, but the first section which authorizes the “ volume printed by authority of the board ” to be read in evidence, remains unchanged.

The testimony of M. Bellinger, the printer of the volume, was sufficient to make a prima facie case that he did print it by the authority of the board. The statute does not require that the printed copy shall be proved to have been compared with the original.

It was proved thereby that a bill of which the true amount was $631.50 was audited by the board and paid the defendant at $1,031.50. It was otherwise proved that this excess of $400 was retained by the defendant.

It was not proved that the defendant rendered this bill at $1,031.50. It did appear that his entire bill as presented to the hoard was not audited at its full amount, and there was some evidence tending to show that it was reduced about $400.

It was claimed upon the part of the defendant that he did not know how much his original bills were reduced in the aggregate, and, therefore, it did not appear that he knew? when he received the $400, that it was not rightfully his own.

But the people proved that the like transaction occurred the following year, whereby the defendant obtained $300 by means of another increase of the amount of the audit of the bill of the same asylum for that year. If there were no authority in point we should naturally think that the second attempt was hazarded because of the apparent success of the first, and thus we should reach the conclusion of guilty knowledge in the receipt or detention of the money' first received. At any rate it seems to bear strongly upon the question of guilty knowledge. We think the evidence was competent. Bielschofsky v. People, 3 Hun, 40; S. C. 60 N. Y., 616 ; Copperman v. People, 56 N. Y., 591; People v. Dowling, 84 N. Y., 478-486 ; People v. Lyon, 1 N. Y. Crim. Rep. 400, S. C., 33 Hun, 623. This case was reversed, but on other grounds, 99 N. Y., 210., 3 N. Y. Crim. R. 161.

The defendant however offered, but was not allowed, to testify that at the time the checks were handed him by the clerk of the board of supervisors, in which the $400 were included, he asked the clerk what his bills were audited at, and the items where he had been cut in his bills, and that the clerk responded: “You pay the items on this pay-roll (meaning the list in which the asylum bill was carried out at $631.50), and the balance of the money is yours; that balance is stated in this account at $807.50, and that will show you how much your bill has been cut and how much allowed.”

We have examined the case to ascertain if there is any testimony fairly tending to show any complicity of the clerk and the defendant with each other, or that the defendant had surcharged the asylum bill, or that he had since purloined that bill, or the original records of the board of supervisors. If such testimony existed, there would be reason to hold that the defendant’s conversation with the clerk, instead of being helpful to indicate the ignorance under which he received $400 too much, was a cover invented to disguise his real knowledge. But there is no affirmative evidence of these acts-We have these facts : first, that the asylum bill was audited for $400 too much the first year; second, that it was audited for $300 too much the second year ; third, that these two sums were included in the aggregate with many other sums, and that the defendant had the benefit of the increased audits both years. It does not appear that the bills were surcharged by the defendant.

If we may indulge in inference of some probability we should infer that the clerk carried the increase into the report and audit both years, without any increase in the original bills. With this assumption the question remains, would the clerk do this without collusion with the defendant ? Could the defendant receive this guilty excess in ignorance that it existed ? If the defendant had been permitted to testify to the conversation between himself and the clerk, the answer proposed by his counsel might not have eliminated the difficulty which these questions suggest. But we are to bear in mind that the defendant was entitled to the benefit of the presumption of innocence until his guilt should be shown, and that presumption clothed him with innocence with respect to any collusion with the clerk, with respect to surcharging his bill, with respect to purloining his own bills or the records of the board, until some affirmative evidence tending to show his guilt in some of these respects had been given.

We therefore think that, as the case stood, the defendant' was entitled to the benefit of the conversation between himself and the clerk, when the clerk gave him the checks in which the $400 were included and covered up. Clearly that conversation was part of the res gestee, and, if honestly had, tended to show that the defendant did not know that he had received $400 too much, and, therefore, did not knowingly take it with a dishonest purpose.

The defendant’s counsel requested the court to charge that there is no proof that implicates the defendant in the loss of his original report to the board, and in the loss of his personnal account rendered to the board. The court declined so to charge, and remarked: “ I submit the entire question to the jury as one of the facts of the case.”

The jury were, therefore, at. liberty to find that the defenddant was implicated in the loss of these papers. Clearly, if they did so find, the conclusion of the defendant’s guilt would be almost irresistible.

There was no evidence to justify the finding.

The conviction and judgment must be reversed and the case remanded to the Schoharie county sessions for a new trial.

Learned, P. J., concurs in the results ; Mayham, J., not acting.