Laymon v. State

176 N.E.2d 120, 242 Ind. 62, 1961 Ind. LEXIS 210

Opinions

Arterburn, J.

Footnotes

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*The appellant was charged in two counts, the first with embezzlement of money-in the amount of Nine Hundred Forty Dollars and Eight-one cents ($940.81) while employed with the Logansport Light and Water Office of the city of Logansport. In the second count he was charged with grand larceny of the same amount.

The prosecution was instituted under the provisions of Burns’ Ann. St. §10-1701 (1956 Repl.). The trial was by court, who found the appellant guilty of the crime of embezzlement and not guilty of the crime of grand larceny. Appellant was sentenced accordingly.

The sole assignment of errors is the overruling of appellant’s motion for a new trial. Specifications 1 and 2 claim that the decision of the court is contrary to law and not supported by sufficient evidence, the main contention being that the evidence was merely circumstantial and not substantial enough to support the decision.

Thei*e is more than mere circumstantial evidence in this case, although such evidence would be sufficient to sustain the verdict. It shows that the appellant was employed as a bookkeeper and part-time cashier of the Light and Water Office of the city of Logansport. In that position he accepted cash receipts in payment of the customers’ water bills and made bookkeeping entries accordingly. It was established that there was a shortage of cash receipts through a period of approximately two years prior to the date fixed in the indictment. It was shown that credits at times were posted to customers’ water accounts at night and after hours, when the defendant was using the posting machine. The cash on such accounts received was not at the same time run through the cash receipts book. Seventeen witnesses testified that they turned over their payroll checks at the utility office window to pay their water bills. The evidence showed that the appellant endorsed these checks personally and deposited them in his personal bank account. It also shows that he deposited other payroll checks accepted in payment of water bills at the utility office and deposited the checks in a bank in another town (Kokomo), where he told the bank official there that he was an auditor, and the word “Auditor” was placed after his endorsement on the check. This personal bank account amounted within a year’s time to over $21,000.00.

When a defendant takes checks as an employee through a payment window or out of a water department and endorses them and deposits these checks in his personal account, we have direct evidence, rather than mere circumstantial evidence of embezzlement. The court did not have to accept appellant’s story of how he came into possession of the checks used to pay water bills.

In corroboration of the State’s case, there is circumstantial evidence which shows that although he made approximately $3,000.00 a year during the time in question, the appellant accumulated bank accounts and other assets of $20,000.00 to $30,000.00, including two or three cashier’s checks of $5,000.00 each. Such evidence is material and relevant and from such evidence conclusions adverse to the appellant’s contentions may be drawn. There is no explanation of how this money was legitimately received by the appellant or why it should not have been properly in vested, rather than held in cashier’s checks, unless concealment was desired.

The evidence more than amply supports the decision. We may not weigh the conflicting evidence, but must accept that most favorable in support of the decision. Hudson v. State (1957), 236 Ind. 237, 139 N. E. 2d 917. The fact that another person might also have been guilty of embezzlement does not eliminate the fact that the appellant is also guilty.

Objections were made that testimony was admitted showing the appellant was involved in other check and cash transactions in connection with the Light and Water Office in which he was employed. A review of this evidence reveals a system of similar transactions. It was admissible to show the intent, course of conduct, and any scheme involved in the embezzlement charged. Such transactions, when the crime of embezzlement is charged, are admissible to show such a course of conduct. Loveless v. State (1960), 240 Ind. 534, 166 N. E. 2d 864; Whitney v. State (1934), 206 Ind. 562, 188 N. E. 779.

Another specification in the motion for a new trial alleges that it was error to admit testimony of one of the witnesses with reference to procedure in the Light and Water Office shortly after the appellant left his employment there. The testimony was nothing more than corroborative of the testimony of those working in the office at the time the appellant was employed there. We do not find that the testimony admitted was in any way prejudicial.

A further specification is to the effect that the court erroneously, over objections, admitted the testimony given by the appellant before the grand jury, as well as certain, statements made by the appellant to the prosecuting attorney. The appellant testified voluntarily before the grand jury and signed a written waiver.

Testimony which a person gives before a grand jury, just as any conversation which he may have concerning a crime with which he is charged, is ordinarily admissible. If the whole conversation or statement is not brought out on direct examination, it may be drawn out upon cross-examination.

“The rule is well established that confessions and declarations voluntarily made by a witness before a grand jury may be introduced in evidence in a subsequent criminal prosecution in which the witness is the defendant.” 2 Wharton’s Criminal Evidence, §344, p. 23 (12 ed. 1955); See also: State v. Brumfiel (1919), 188 Ind. 584, 125 N. E. 40.

It is also urged that these admissions by appellant were introduced before the corpus delicti was proved. We have previously determined that the trial court may, in its discretion, determine the order of proof. The corpus delicti was proved independently of the appellant’s confession in this case. Hurst v. State (1944), 222 Ind. 599, 56 N. E. 2d 493; Watts v. State (1945), 226 Ind. 655, 82 N. E. 2d 846; (1950), 229 Ind. 80, 95 N. E. 2d 570; Parker v. State (1949), 228 Ind. 1, 88 N. E. 2d 556, 89 N. E. 2d 442.

Finally, it is contended that the judge edited the transcript of testimony given before the grand jury and it was not discovered until after the trial. There is testimony, however, to the contrary, which shows that the attorneys representing appellant and the State got together and went over the transcript of the grand jury and edited it and informed the court of portions by agreement to be deleted. Such evidence is sufficient to support the trial court’s finding against the appellant on this specification in the motion for a new trial.

The judgment of conviction is affirmed.

Landis, C. J., not participating.

Achor and Bobbitt, JJ., concur.

Jackson, J., dissents with opinion.

This case was reassigned at a conference of this court on June 21, 1961, and the writer of this opinion received it for the first time on that date.