Ireland v. State , 99 Ark. 32 ( 1911 )

Kirby, J.,

(after stating the facts). It is contended that there was not sufficient description of the public funds alleged to have been embezzled, nor allegation of the ownership thereof. This charge was -preferred under the act of 1891, as amended in 1903 (section 1990, Kirby’s Digest).

Section 1994 provides that in prosecutions under this act “it shall not be necessary for any indictment found * * * to- particularly describe the kind or denomination, or date, or number of the funds, * * * but it shall be sufficient to describe them in general terms.”

Section 1993 defines “public funds” as used in the act to mean: “All lawful money of the United States, and all State, county, city, town or school warrants, or -bonds, or other paper having a -money value, belonging t-o the State, or to any county, city, incorporated town or school district therein.”

The first count charges that, by virtue of his office as county treasurer, he h-ad in his possession a large sum of money, towit, $149,446.49 in gold, silver and United States currency, a more particular description to the grand jury unknown, * * * said mo-ney being the property of Arkansas County, * * * and having in his possession such money and public funds as aforesaid, * * * did * * * embezzle and convert to his own use the sum of four thousand nine hundred forty-eight and 44/100 dollars.”

The second count charged him with- being by virtue of his office a receiver of public funds of the county, and with having-in his possession the same large sum of money, “the personal property of Arkansas County,” describing it as -in -the first count, and designating it “public funds of the county of Arkansas,” and having resigned as treasurer, and the county court having stated his account and directed him “to pay to his successor in office the sum of $5,681.59, the money found due on his settlement aforesaid, * * * feloniously and fraudulently did convert the same to his own use and benefit.”

In each and -both counts he is charged with having in his possession, by virtue of his office, public funds of Arkansas County, a large sum of money, gold, silver and United States currency, and the embezzling and converting to his own use, a certain sum of “dollars” in the first, and in the second $5,681.59, the money found due on his settlement aforesaid, * * * the money and funds aforesaid.”

There can be no mistaking that he was charged with taking wrongfully, of the public funds in his -hands belonging to Arkansas County, the amounts specified, consisting of money, gold, silver and United States currency, and the funds ánd ownership were sufficiently described and alleged.

2. It is next contended that the indictment charges two offenses. It states that the offenses charged Nos. i and 2 are the same, and count No. 2 is not a charge “for wilfully failing to pay over funds to his successor in office,” and the allegations relating thereto are immaterial and surplusage. Davis v. State, 80 Ark. 310.

In each count it sufficiently appears that he is charged with having public funds of the county of Arkansas in Ills hands as treasurer thereof, and with embezzling a certain amount of said funds, and the court committed no error in overruling the demurrer on that ground. State v. Rapley, 60 Ark. 13.

3. It is strongly urged that the court erred in permitting the judgments of the county court against the treasurer, fixing the amount due from him to the county, to be introduced in evidence. It is contended by the State that such settlement and determination of the amount due was not a judgment, and that the treasurer was present at the settlement and admitted the correctness of the amount adjudged to be due, and that such order was competent as an admission on the part of defendant.

In Wycough v. State, 30 Ark. 105, the court, in passing upon the liability of the county -treasurer and sureties on his bond, said: “When the settlement is made by the principal himself, or the accounts a-re adjusted by -the court, after notice to the principal, the adjustment, in the absence of fraud or collusion, concludes any further inquiry into the state of the officer’s accounts, whether the sureties have notice or not;” citing cases. “That settlement concluded any further inquiry into the state of the officer’s accounts. Hunnicutt v. Kirkpatrick, 39 Ark. 172; Jones v. State, 14 Ark. 170; Wycough v. State, supra; George v. Elms, 46 Ark. 260.” State v. Wood, 51 Ark. 211.

Thus it appears that -the settlement añade by the county court, the tribunal provided by law for the settlement of the treasurer’s accounts, was conclusive as against him and his sureties, and in fact and effect a .judgment fixing the amount of the liability.

“A judgment in a civ-il case must generally be excluded from evidence in a criminal prosecution, -because the parties are not the same, and, were they the same, it would be improper to receive a judgment in a civil case as evidence of the commission of a crime of which defendant -is accused, for the reason that such judgment may be founded on a mere preponderance of evidence, not sufficient to satisfy a jury beyond reasonable doubt.” i Freeman on Judgments, § 319a; see also Greenleaf on Evidence, § 537-

In Britton v. State, 77 Ala. 202, in the prosecution of a tax collector, a judgment previously rendered against him in a civil action for the amount of the shortage was introduced in evidence, and the court said: “A judgment recovered against the defendant and his sureties in' a civil suit instituted against them by county of Hale for liabilities incurred in his tax transactions was not properly admissible in evidence to establish any fact on which it was rendered. In civil cases juries are authorized to decide on the mere preponderance of the evidence when it produces satisfactory conviction. In criminal ’ prosecutions (they are not authorized to convict unless they are satisfied of the party’s guilt beyond a reasonable doubt. 1 Greenleaf, Ev. (14 ed.), § 537. The judgment in the civil cause, moreover, may ..have been rendered on a state of facts totally irrelevant in a crimi. nal prosecution for embezzlement — as, for example, for a liability incurred by reason of defalcation of the clerk’s deputies, or even his own negligent loss of the tax money for which he would be civilly but not criminally liable. Another reason still ■is the want of mutuality, parties to the two proceedings being different — the judgment having been recovered in the name of the county and the prosecution being in the name of the State. It would be hard for a defendant, as observed by M-r. Starkie “that, upon a criminal charge which concerns his liberty or even his life, he should be bound by any default of his in defending his property.” Starkie’s Ev. (Shars.), 300-301.

In Busby v. State, 51 Tex. Crim. Rep. 311, where the fiscal agent of the Texas Penitentiary was convicted for embezzlement of State funds, and upon trial a consent judgment for the State in a civil suit recovered against him and his bondsmen for the shortage was read in evidence, the court, on a rehearing, after an analysis of the authorities, said: “In accordance with these, we are constrained to hold that the view heretofore taken was erroneous, and that the court below should not have admitted the judgment rendered in the civil case against appellant, notwithstanding the State was a party plaintiff in the civil suit and appellant was one of the defendants; thus far there was mutuality, but not complete mutuality, as there were other defendants, and although the subject-matter of the suit was the same as we have seen, the rule of evidence was different in the two proceedings; said judgment may have been, and' doubtless was, rendered upon a character of proof not permissible in this criminal prosecution. Furthermore, if we should hold that there was complete mutuality in both civil and criminal actions, it would necessarily follow, if the State had been defeated in the civil action, and the judgment rendered in favor of this appellant, same would be a complete bar to any criminal prosecution, which is not the law.” See also People v. Leland, 73 Hun 162; Riker v. Hooper, 35 Vt. 457; State v. Bradnack, 69 Conn. 212; Dunagain v. State, 38 Tex. Crim. 614; Hill v. State, 22 Tex. App. 579.

It was error to permit said judgment to be read in evidence on the trial of defendant for embezzlement, and such error was decidedly prejudicial to his rights; in fact, no other testimony was introduced to show the amount due by him to the county and. not accounted for, and the recital of the judgment, “Wherefore the court finds that the said J. M. Ireland, as former treasurer, is indebted to the county in the sum of $5,681.89, and that he is short in the funds belonging to the county in the said sum of $5,681.89, he having failed and refused to produce said sum and to turn same over to his successor in office, and the new treasurer, F. B. Gibson, is hereby directed to collect said sum of $5,681.89 from the said defaulting treasurer, J. M. Ireland, and his bondsmen,” and the circuit clerk’s testimony that no appeal was ever taken from the county count’s order directing him to pay over to his successor the amount due the county, was well nigh conclusive against him; and especially is this true when the unnecessary allegations in the second count of the indictment relating to said settlement and order of the county court directing him to pay over to his successor in office said sum of money, and his failure and omission to do so, held by us to be surplusage, were before the jury, with section 1842, Kirby’s Digest, erroneously given in charge to them by the court. Said section has been repealed, and .is not the law, and could have had no other than a highly injurious and prejudicial effect against the defendant under the circumstances of the trial.

Instruction No. 3 given for the State, telling the jury that if the defendant was treasurer of the county and had in his possession funds belonging thereto, and feloniously converted same to his own use, or used it in any way for his private purpose, “or loaned the same or permitted any other person to use or otherwise misapply any part of the fund which so came into his possession, if any, you will find the defendant guilty,” was erroneous and 'misleading, since from said surplusage in the indictment with the testimony that the funds had been loaned to the banks, or -that the banks in which they were deposited had paid the treasurer interest hereon, the jury may have 'concluded that they were authorized to convict him for loaning such funds.

Instruction No. 1 was objectionable also in that the jury might have understood from it that they were authorized to find defendant guilty if he failed or omitted to pay to his successor in office the amount found and adjudged to be due 'by the county court in its .settlement with him.

For the errors indicated, the judgment is reversed, and the cause remanded for a new trial.