State v. Judd , 74 Utah 398 ( 1929 )

The defendant was charged with having on the 23d day of July, 1923, feloniously appropriated to his own use $200 of public money belonging to Salt Lake county, which had come into his hands as deputy county treasurer. He was tried before a jury, found guilty, and sentenced to imprisonment in the state prison. From the judgment of conviction he has appealed to this court.

A reversal of the judgment is sought upon the grounds of alleged errors of the trial court in the admission and rejection of evidence, and in certain of the court's instructions to the jury. The accused was a deputy county treasurer of Salt Lake county from 1921 to 1927, in charge of the redemption department of the county treasurer's office. An audit disclosed a shortage of the funds in that particular department of $7,064.96 during the period from May 1, 1922, to August 27, 1926. It was the theory of the state that money belonging to the county had been unlawfully appropriated, and the fact concealed by false entries in the books of account and the records of that department.

Evidence was introduced showing the system of keeping records and accounts in the department, and numerous instances of alterations or false entries, obviously made to cover up shortages. The business of the redemption department, of which the accused had charge, was to receive payments in redemption of property previously sold for taxes. Upon such a payment being made, the system in use required the transaction to be recorded as follows: An appropriate receipt or certificate was executed in duplicate, one of which was issued to the redemptioner and the other transmitted to the state auditor. Stubs of the certificate were also made in duplicate, one of which was transmitted to the county recorder, to be entered on his record, and the other retained in the redemption department of the office of the county treasurer. These certificates and stubs all purported to contain the amount of tax, penalty, interest, and costs collected, with other appropriate facts, and, except for the certificate issued to the redemptioner, furnished the basis for the entry of the redemption in the several records of the respective offices. The stub retained in the redemption department was the original and base entry for the charge against the county treasurer and the redemption funds in his possession; that is to say, the aggregate of the amounts shown on the stubs of the redemption certificates was the amount with which the department was charged and for which it was accountable. From this stub an entry was made in the delinquent tax sale record, showing the redemption of the particular property redeemed, and from the stub was obtained the amount to be charged against the treasurer in the registry of receipts, the cash account, and in the record of apportionments, where sums received for redemptions were apportioned and distributed among the respective governmental units entitled thereto.

The system of records and accounts was such that misappropriation of money could be temporarily concealed by a manipulation of accounts, whereby in a given transaction the correct amount of money received would be acknowledged to the redemptioner, entered on the delinquent sale record, and reported to the county recorder and the state auditor, and a less amount entered upon the other books and records mentioned; the latter being the fiscal debit charges against the department. For obvious reasons the correct amount paid must be stated in the certificate issued to the redemptioner, and because the delinquent tax sale record and a similar record in the office of the county recorder both showed the amount of delinquent taxes opposite each tract of land sold, the correct amount to discharge such delinquency on redemption had to be reported and entered, else the discrepancy would be apparent. By entering reduced amounts in the records and books of account referred to in the redemption department, an abstraction of money to the extent of such reduction could be covered and the accounts of the office be made to appear correct.

The alteration and false entries relied upon to prove the offense charged in the information arose out of a transaction whereby on July 23, 1923, one J.M.C. redeemed certain property from a delinquent tax sale by a payment of $391.94. This was the correct and necessary amount required to be paid, as shown by the records of the department, and the certificate of redemption in the handwriting of the accused recited the receipt of such sum. The treasurer's stub, however, had been altered by changing the figure "3" in the hundred column to "1," thus making it appear that $191.94 only had been received. The entry in the apportionment record was for the reduced sum, and apparent changes had been made in the daily cash account to make it correspond with the alteration. There was sufficient evidence to warrant the jury in finding that the accused made the alterations and entries referred to.

In addition to the alteration and falsification of the records concerning the transaction relied on to establish the particular offense charged, the state was permitted to prove, over the objection of the accused, numerous other similar alterations and false entries relating to over 40 transactions occurring at various times, both before and after the offense charged, and between May 1, 1922, and August 27, 1926. Complaint is made that the admission of this evidence was erroneous (1) because it related to other independent and disconnected offenses; and (2) because, with respect to the evidence of most of the transactions, the evidence of the connection of the accused with the supposed offenses was not of sufficient degree to render the proof of such other offenses admissible.

The evidence complained of was not irrelevant and inadmissible because it connected the accused with other criminal offenses. It is a rule of general application that, in embezzlement cases, proof of other acts similar to the one charged is admissible to show criminal intent, 1 Wigmore on 1 Evidence § 329; Underhill on Crim. Ev. (3d Ed.) § 447; 2 Jones, Comms. on Ev. (2d Ed.) §§ 624-626; State v.Siddoway, 61 Utah 189, 211 P. 968; note to State v. Downer, 43 L.R.A. (N.S.) 774.

Nor can the objection to the evidence be sustained upon the grounds that it was not sufficient in degree to connect the accused with the other similar alterations and falsifications. The general rule is that evidence is not relevant or admissible unless it reasonably tends to establish the fact sought to be proved. But "the evidentiary fact offered does 2 not need to have strong, full, superlative probative value, does not need to involve demonstration, or to produce persuasion by its sole and intrinsic force, but merely to be worth consideration by the jury." 1 Wigmore on Evidence, § 29; 2 Jones, Comms. on Ev. (2d Ed.) § 726.

But here we have a situation where evidence of collateral acts is admissible as an exception to the general rule for the restricted purpose of forming a basis for arguments and inferences that the act in controversy was done with evil intent. And the question arises: By what degree of 3, 4 certainty must such collateral act be established to make it a safe basis for the purpose for which it may be employed? If the proof of the collateral act be sufficient to amount only to surmise or conjecture, or merely tends to show it as a fact, is it a sufficient basis for inference and argument concerning another act, as would be the case if the collateral act was satisfactorily established as a fact?

Upon the question of what degree of proof or probative value of evidence of other similar offenses is necessary to the admissibility of such evidence, when it is otherwise relevant, the authorities are not harmonious. It is held in some few cases that it must be clear and sufficient to support a verdict of the guilt of the accused of such other offenses. Haley v. State, 84 Tex.Crim. R., 209 S.W. 675, 3 A.L.R. 779, and annotation following. Other cases and authorities prescribe a lesser test. Thus is Commonwealth v. Robinson, 146 Mass. 571, 16 N.E. 452,456, the court said:

"There is no rule of law that, in order to render the testimony admissible, such prior fact must be established by a weight of evidence which will amount to a demonstration, and shut out all doubt or question of its existence. It is only necessary that there should be so much evidence as to make it proper to submit the whole evidence to the jury."

The circumstances of the present case, however, do not require a decision by this court of the particular degree of proof requisite to the relevancy of such evidence. Testing the evidence in question by the rule that it must be sufficient to make out a prima facie case of guilt, and therefore sufficient to support a verdict of guilty if the acts had been charged, we find the evidence so admitted sufficient in probative value and weight as to be relevant and admissible. Such collateral acts are subject to proof by circumstantial evidence, and when so established become facts which may be taken as the bases for new inferences of fact. 1 Jones, Comms. on Ev. (2d Ed.) § 364.

There were numerous circumstances, all tending to show the accused guilty of making the numerous alterations and falsifications in his department. The only difference in the proof of the numerous instances, of who made the false entries, was that two experts on handwriting, after a somewhat elaborate examination and analysis involving photographic enlargements, etc., gave opinion evidence that the alterations and false entries relating to the offense charged, and four or five of the other false entries, were in the handwriting of the accused. With respect to about forty of the other falsifications of the records, these two particular experts did not testify. But there was the testimony of another witness, who had been employed in the redemption department during the time in question, who, while not pretending to be an expert on handwriting, testified, from his knowledge of the handwriting of the accused, that numerous of the false entries were, in his opinion, made by the accused. It was also proved that the accused was in charge of the redemption department during the times in question; that he personally kept the register of receipts, the record of apportionments, and the daily case account, the particular records in which the false entries were made. All other employees of the department were called as witnesses and severally denied making any of the false entries.

The system and manner of keeping the records and accounts were shown, from which the jury could very reasonably infer that the accused must have made the false entries. That they were made by some one was admitted and proved. And all of them were in amounts less than the true amounts. That any other than the accused could have made the false entries is negatived by the system and practice by which the records and accounts were kept. This may be illustrated briefly. When a payment was received in the department, the original entry of the transaction was on the redemption certificate and stub, both in duplicate. On the same day the amount received must be entered on the daily cash account. The posting of the payment on the delinquent sales record, which was usually made by an assistant in the department, and was required to be and always was correct in amount, was not made at any regular time, but irregularly, varying from one to seven days after receipt of the payment. The entries in the register of receipts and in the apportionment record, both made by accused, were also made at irregular intervals from one to thirty days from the time of the original entry. For another to make and conceal a false entry on the treasurer's stub involved the selection of that particular time after the assistant had posted the redemption in the delinquent sales record and before the accused had entered the amount of the redemption in the register of receipts and the apportionment record, and necessarily required him to alter the daily cash account in four separate places for every day from the day when the particular redemption had been made until and including the day preceding the day when the falsification was made.

The daily cash account was kept by accused in his own hand. To make up such account he must, of necessity, each day refer to the account of the preceding day for the balance to be carried forward. In such case the accused must have made entries in the register of receipts and apportionment book from a treasurer's stub, which plainly showed on its face that the amount of the payment evidenced thereby had been altered. It also involved the necessity of the accused, when making up his daily cash account, to each time refer back to and examine the preceding day's cash account for the purpose mentioned, when such preceding account, originally made in his own handwriting, had been altered in both the debit and credit columns and in the totals on both sides. For this to occur more than 40 times without the knowledge of the accused to such falsification is beyond the range of human probabilities. Other circumstances tended to support the conclusion that the falsifications were made by accused and to exclude the probability that any other person could have made them. So that we are bound to conclude from the record that there was sufficient evidence in law to support the finding that all of the alterations and false entries were made by the accused.

It is next contended that the trial court committed error in refusing to admit in evidence an offer of the accused to prove "that in the tax department under the jurisdiction of Mr. William Goesbeck there were approximately 450 false entries during the period of time commencing April 26, 1923, 5 and ending January 19, 1926, in various amounts." It was further offered to show that such defalcations were made by other persons, and not by the accused.

We perceive no error in rejecting the offered evidence. It did not pertain to the redemption department, which was a separate division of the treasurer's office, where the falsifications charged against the accused were made. It amounted only to an offer to prove that some other person, in another and separate department in the same office, had committed offenses of a similar nature to those charged against the accused. Except as stated, there was no claim of any connection or relation between the offenses offered to be proved and the offenses which occurred in the redemption department. It is clearly not competent for the purpose of proving that one person did not commit a particular offense, to show that some other person did commit a similar, but different, offense. The proffered testimony amounted to no more than this, and no error was committed in refusing to admit it.

There are other assignments of error relating to the admission of evidence on cross-examination of the accused, which appellant's counsel has grouped and presented together. It was shown that the accused had kept certain moneys paid on a redemption in an envelope separate from the general funds, pending a claim for its return to the payer, to 6, 7 whom it was later paid. And questions were asked and answered as to the accused being "hard pressed" for money, as to betting on horse races, and that on one occasion he took $500 of the redemption funds and deposited his personal check therefor, and that the check was first dishonored and later paid. We cannot say that the admission of any of this evidence was erroneous. The practices of keeping the records and the handling of the money of the department was a proper subject for inquiry, and the question concerning the financial stress of accused and his betting on horse races were relevant as bearing upon a motive for the commission of the acts by defendant which the prosecution was attempting to prove.

Error is predicated upon the refusal of the trial court to give the following instruction to the jury, 8 concerning good character, which the defendant requested, viz:

"You are instructed that good character is an important fact with every man, and never more so than when he is put on trial charged with an offense which is rendered improbable in the last degree by a uniform course of life wholly inconsistent with any such crime. There are cases (and it is for you to say what weight it shall have in this case) where it becomes a man's sole dependence, and yet may prove sufficient to outweigh evidence of the most positive character. The most clear and convincing cases are sometimes rebutted by it, and a life of unblemished integrity becomes a complete shield of protection against what otherwise may appear to be proof of guilt. Good character may not only raise a doubt of guilt which would not otherwise exist, but it may bring conviction of innocence. In every criminal trial it is a fact which the defendant is at liberty to put in evidence, and being in, the jury has a right to give it such weight as they think it entitled to."

The requested instruction is objectionable, because it is in the main mere argument. No authorities are cited in support of it. No error was committed in refusing to give it.

Upon the subject the court gave the following 9 instruction:

"You are instructed that, when the proof in a criminal case tends to overthrow the presumption of innocence with which the law clothes a defendant, the latter is permitted to support the original presumption of innocence by proof of good character. Such facts tending to show good character, if proven, should be considered by the jury in connection with all the other testimony in the case, and not independently thereof. And the guilt or innocence of the defendant determined from all the testimony in the case, and if upon a consideration of all the evidence, including that of his previous good character, you entertain a reasonable doubt as to his guilt, or if the evidence of good character, when considered in connection with all the other evidence, creates a reasonable doubt in your minds of the guilt of the accused, he is entitled to the benefit of such doubt, and you should acquit him."

No exception was taken to the giving of this instruction. The substance of the argument in this connection is that the defendant was entitled to an instruction to the effect that the circumstances may be such that proof of good character alone would be sufficient to create a reasonable doubt of guilt where, without it, no such doubt would exist. We express no opinion as to the necessity of giving such an instruction if properly requested. It is enough to say that in this case it was not requested, and the instruction given, at least, contained no affirmative error. Upon the record appellant has no valid complaint regarding the instructions upon the subject of good character.

Further complaint is made because the trial court 10 refused the defendant's request to instruct the jury that:

"Great caution should be exercised in determining who was guilty of misappropriation in any case where it appeared that several persons had access to the funds and records, and particularly where, as in this case, the evidence was wholly circumstantial."

We are cited to no authority or legal principle which requires such an instruction, and we fail to see the propriety or necessity of it. The jury was instructed that the defendant was presumed to be innocent until he is proved guilty beyond a reasonable doubt, and that the burden rests upon the state to prove each and every essential fact constituting the offense charged beyond a reasonable doubt, and that in case of a reasonable doubt as to his guilt he is entitled to an acquittal. The instructions given prescribed the degree and certainty of proof required, without further caution or argument.

Another complaint is made "that the court erred in charging the jury upon the law of circumstantial evidence." Upon this subject the defendant requested an instruction which was refused and another given. The instruction requested was plainly objectionable. It is not set out in appellant's 11 brief, and is not now defended or insisted upon. The argument goes to the criticism of the instruction which the court gave, and to which the defendant took a general exception. The instruction given was as follows:

"Circumstantial evidence in criminal cases is competent and, so far as its nature is concerned, is of the same force and effect as any other evidence: provided the facts and circumstances when taken all together are of such a character as to satisfy the minds of the jury beyond a reasonable doubt that the defendant is guilty. This kind of evidence is the proof of such facts and circumstances connected with or surrounding the perpetration of the crime charged as to tend to show the guilt or innocence of the person accused; and if these facts and circumstances, when considered all together, are sufficient to satisfy the minds of the jury of the guilt of the defendant beyond a reasonable doubt, then such evidence is sufficient to authorize a conviction. But if such facts and circumstances, when considered together, are explainable upon any other reasonable hypothesis than that the defendant is guilty, then such evidence will not warrant a verdict of guilty."

It is contended that the instruction is erroneous because it does not contain a direction (1) that the jury must find the facts and circumstances to be true; (2) that such facts and circumstances, in order to convict, must be incompatible on any reasonable hypothesis with the innocence of the defendant; (3) that such facts and circumstances are incapable of explanation upon any reasonable hypothesis other than defendant's guilt; and (4) that every circumstance constituting a link in the chain of evidence must be consistent with defendant's guilt and inconsistent with his innocence.

The instruction given substantially embraces the matters suggested by the first three objections. To say that facts and circumstances must be sufficient to satisfy the minds of the jury of the defendant's guilt beyond a reasonable doubt necessarily implies that the jury must find the facts and circumstances to be true, and a direction that "if such facts and circumstances, when considered together, are explainable upon any other reasonable hypothesis than that the defendant is guilty, then such evidence will not warrant a verdict of guilty," is the full equivalent of a charge that, in order to convict, the facts and circumstances must be incompatible on any reasonable hypothesis with the innocence of the defendant. If the evidence is reasonably compatible with the innocence of the defendant it is clearly explainable on a hypothesis other than that of the defendant's guilt.

The fourth objection is also without merit. It is not mandatory to charge that "every circumstance constituting a link in the chain of evidence must be consistent with defendant's guilt and inconsistent with his innocence." Such is not a correct standard. Each circumstance is not to be considered independently, but in connection with other related 12, 13 facts and the conclusion reached upon the whole. The court here in another instruction stated that the burden was on the state to prove each and every essential fact constituting the offense charged to the satisfaction of the jury beyond a reasonable doubt, and in the instruction quoted charged that circumstantial evidence is the proof of facts and circumstances surrounding the act charged which tend to show the guilt or innocence of the person accused, and that if such facts and circumstances, when considered all together, are sufficient to satisfy the minds of the jury of the guilt of the defendant beyond a reasonable doubt, the evidence would authorize a conviction, but that, if such facts and circumstances, when considered together, were explainable upon any other reasonable hypothesis than that the defendant was guilty, the evidence would not warrant a conviction. Fuller instructions upon the subject are frequently given, but the essence of the law was contained in the instruction given in this case. At least the charge given on the subject contained no erroneous statement of law. In the absence of the request for a correct and fuller instruction, error cannot be predicated upon a general exception to an instruction which is objectionable, at most, for not being more specific.

The judgment is affirmed.

EPHRAIM HANSON and FOLLAND, JJ., concur.

ELIAS HANSEN, J., concurs in the result.