State of Oregon v. Cahill

298 P.2d 214, 293 P.2d 169, 208 Or. 538

• Court: Oregon Supreme Court
• Decided: June 13, 1956
• Status: Published

Opinions

BRAND, J.

The defendant Otto W. Cahill was indicted by the grand jury of Lincoln county for the crime of conversion of public funds in violation of OCLA, § 23-525 as amended by Oregon Laws 1941, ch 371, p 639. (See ORS 165.015.) The indictment alleges that

“The said Otto W. Cahill on the 1st day of February, 1954, in the said County of Lincoln and State of Oregon, then and there being, did then and there have in his possession and under his control a certain sum of money, to-wit, the sum of $750.00, which said sum of money was then and there the property of the Taft-Nelscott-Delake Water District, a municipal corporation of Oregon, and that he did then and there feloniously and fraudulently steal, make away with and convert to his own use the said sum of $750.00, and did then and there at said time and place wilfully and feloniously neglect and refuse to pay over and deliver the said sum of $750.00 as required by law, and did then and there at said time and place wilfully and feloniously fail and refuse to pay over said sum of money then lawfully demanded so to do by said Taft-Nelscott-Delake Water District, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.”

The case was transferred to Polk county for trial. Defendant was found guilty by the jury, and from the ensuing sentence he now appeals.

Cahill was one of the commissioners, and secretary, of the Taft-Nelscott-Delake Water District, a public corporation. It is admitted that he received a check for $750 drawn on the District funds, which was delivered to him pursuant to a resolution of the Board of Commissioners dated June 8, 1951. Defendant denies that he converted the money and claims that he returned it to John D. Naylor, the then treasurer of the Water District, on January 21, 1954. He testified that the money was returned in cash composed of $50' bills. Naylor died on January 27, 1954. The Water District brought an action against Cahill to recover the money. His deposition taken in that action is in evidence.

Cahill takes the position that what he did with the money is unimportant. He rests his defense upon the claim that he returned the money, and he supports that claim by asserting that Naylor, who is silenced by death, executed a receipt acknowledging the return of the money. The state contends that the purported signature of Naylor is a forgery.

In general, the trial judge gave a fine example of intelligent and impartial conduct of a criminal case. He did, however, commit one error. On this we are all agreed. The facts are simple. The instrument commonly described as the “questioned document” was the receipt for $750 on which Naylor’s name appears. The question is whether the signature was forged or genuine. One document was received in evidence beating the true signature of Naylor. This was Exhibit 31, a photostatic copy of a portion of the budget report of the District, bearing the signatures of both Naylor and Cahill. It was admittedly genuine. Cahill had signed a receipt acknowledging the return to him of “a photostatic copy of the budget report * * * showing signatures of the commissioners * * *” signed “Otto W. Cahill”.

In addition to Exhibit 31, the court received in evidence, over defendant’s objection, nine checks of the Water District on which appeared the signature of John D. Naylor, as treasurer. The undisputed testimony was that the signatures were genuine. A witness without contradiction testified that he saw Naylor sign them. The checks had all been cleared through the bank, but there was no evidence that the defendant had seen them. They had not been ‘ ‘ admitted or treated as genuine” by Cahill. They were merely proven to be genuine by others. The statutes provide:

“The handwriting of a person may be shown by anyone who believes it to be his, and who has seen him write, or has seen writing purporting to have been his, upon which he has acted or been charged, and who has acquired a knowledge of his handwriting.” OES 42.060.

“Evidence respecting the handwriting may also be given by a comparison made by a witness skilled in those matters, or the jury, with writings admitted or treated as genuine by the party against whom the evidence is offered.” OES 42.070.

It is argued with some force that the nine checks were admissible for comparison purposes under OES 42.060, and that OES 42.070 was an additional permissive provision, “Evidence * * * may also be given * * (Italics ours.)

Our earlier decisions by eminent judges foreclose consideration of this argument of the prosecution. Munkers v. Farmers’ Ins. Co., 30 Or 211, 46 P 850; State v. Tice, 30 Or 457, 48 P 367.

It follows that a signature acknowledged by the defendant to be genuine is admissible for comparison by experts with the questioned document, but signatures proven to be genuine but not ‘ ‘ admitted or treated as genuine” are not admissible for such purpose. Whether this statutory restriction is wise is not for us to say. The statute is valid and violation of it was error. The legislative purpose in enacting the statute is fairly obvious. The receipt of signatures claimed to be genuine for comparison with a signature claimed to be false, might lead to an almost endless excursion into collateral issues. The jury would first have to resolve every contested question as to the genuineness of the signatures offered for comparison before it could safely use them for comparison with the signature on the questioned document. Signatures conclusively proven to be genuine are as relevant and as significant for purposes of comparison, as signatures “admitted or treated as genuine” by the defendant.

The use of the nine checks for comparison was error, not because they were not genuine, and not because they were without probative value, but simply because they were a type of evidence forbidden by the statute on the grounds of extrinsic policy—the avoidance of collateral issues. In this case we would say that genuineness of the nine checks was conclusively established, but not in the manner required by statute. Error was committed but the erroneous use of the inadmissible checks by the experts tended strongly to reduce the risk of mistake on their part when they pronounced the signature on the receipt to he a forgery, after comparing it with the admitted signature.

The constitution of this state provides that either party may have attached to the bill of exceptions “the whole testimony, the instructions of the court to the jury, and any other matter material to the decision of the appeal.” It then provides:

“If the supreme court shall be of opinion, after consideration of all the matters thus submitted, that the judgment of the court appealed from was such as should have been rendered in the case, such judgment shall be affirmed, notwithstanding any error committed during the trial; or if, in any respect, the judgment appealed from should be changed, and the supreme court shall be of opinion that it can determine what judgment should have been entered in the court below, it shall direct such judgment to be entered in the same manner and with like effect as decrees are now entered in equity cases on appeal to the supreme court. Provided, that nothing in this section shall be construed to authorize the supreme court to find the defendant in a criminal ease guilty of an offense for which a greater penalty is provided than that of which the accused was convicted in the lower court.” Constitution of Oregon, Art VII, Section 3.

The only serious question in this case is whether we should invoke Article VII, Section 3 and affirm the judgment “notwithstanding any error committed during the trial”, or should reverse the judgment and remand the case for a new trial.

Attention is first directed to the fact that this defendant was not indicted for forgery. He was indicted and tried on the charge that he feloniously and fraudulently converted to his own use $750 of public funds which were in his possession. The question is, did he convert the money?

The issue of forgery is neither the sole nor principal one in the case. The issue is criminal conversion, on which, to be sure, the question of forgery was material. Though there was weighty evidence on other issues, the question of forgery seems to have absorbed the attention of counsel and court.

The narrative begins with June 8, 1951. Defendant Cahill was a member of the Board of Commissioners of the Taft-Nelscott-Delake Water District, hereafter called the Water District. He was also its secretary. The minutes of the meeting of the Board on June 8, 1951 are signed by Cahill as secretary. They contain the following recital:

“The Secretary reported he had been advised that several Federal Departments would soon have available for purchase by disabled veterans and other individuals, numerous items required by the Water District, and requested that $750.00 be authorized for such purpose, as a deposit of that amount would tie up anything required.

“By unanimous consent the amount of $750.00 was authorized to be transferred to the personal account of the Secretary for the purchase of material and equipment in the event inspection of such items determines that the District will benefit from such purchase.”

The important items are (1) he was advised by several Federal Departments (2) items would soon be available for purchase (3) by disabled veterans; (4) Cahill requests $750 (5) $750 transferred. These items will appear in the later testimony. J. C. Shields was clerk of the Board and was present at the meeting. He testified that Cahill made a statement

“that through him being a war veteran there would be available to him for purchase a quantity of material, in which would be some material which could be used advantageously in the Water District, at a very low cost, and it was not immediately available but would be in a short time, and that in order to purchase it he would necessarily have to have the funds available when he made the purchase, and the Water Board at that time transferred to his personal account the sum of $750.00 for that purpose.”

Shields also testified that the check was returned from the bank in the regular course.

On June 11, 1951 a check was drawn payable to Cahill for $750 on the North Lincoln Bank, signed for the Water District by Noble and Cahill. The check is in evidence and its tenor is undisputed. It bears date of June 11,1951, and on the back appears the indorsement “Otto W. Cahill”. The perforation reads “Paid —6-12-51”. A typed copy of an original deposit slip was produced by the Lincoln Bank and identified as such by the head bookkeeper. The original deposit slip had been given to Cahill. The copy was received without objection. Subsequently the microfilm of the original deposit slip was produced and the jury was permitted to see it with the aid of a “recordak” machine. The deposit slip was dated 6-12-51. The name of the depositor appearing thereon was Otto W. Cahill, and on one line appears the following: “TND Water District 750.00”. The head bookkeeper testified that Ca-hill made up the original deposit slip which was microfilmed in regular course of business and that Cahill wrote it. TND obviously refers to Taft-Nelscott-Delake, the name of the Water District. What does the defendant say about the original disposition of the $750 check? On direct examination by his counsel, Cahill testified as follows:

“Q. There is a deposit slip in evidence here which shows a deposit of $750.00, and states on its face that it was for a check made by the Taft-Nelseott-Delake Water District. Will you tell whether or not, whether you deposited this money that you received from the Board?

“A. Well, my best recollection is that I did not.”

Concerning his receipt of the $750 check, Cahill testified:

“Well, when it was first authorized the clerk asked me if I wanted a check that day or anything, and I said No, and he said, I’ll make it up so we can get our records clear, and the following noon, I believe, or some time I went into the Water Office and the check was laying on my desk, it was made out to me, it required my signature and the Treasurer’s. I signed the check, turned it over and endorsed it on the back, and gave it to our former superintendent Lynn McKinney and I said, Mac, take this down to Earl Noble’s house and have him sign it. He said, What do you want me to do with it, and I said, Here is an envelope,—a brown manila envelope, about the size that would fit into a safety deposit box—I said, Go down to the bank, get it cashed and put it in this envelope and bring it back; and I’m positive that is what he did. The envelope was returned to me and the money has always been in cash in that envelope, and on the envelope I had placed ‘Property of the Taft-Nelscott-Delake Water District’. Some time later I put it in my safety deposit box—I don’t remember if it was that day, because we had a safe in the district office. * #

Again, Cahill testified that the money was in his safety deposit box. We quote:

“Q. Did you use it for any purpose during the time you had it?

“A. No.”

Again we quote:

“Q. Now Mr. Cahill, I would like to have you describe again just what happened on this $750.00 deposit that you made the day after this check was—

“A. I did not deposit it.

“Q. Now, your bank records show a deposit on June 12, 1951, of $750.00. Is that this same check?

“A. I don’t think it is.

“Q. Well, what is it?

“A. That’s a deposit my wife had made.

“Q. Oh, your wife happened to have $750.00?

‘ ‘A. She has several accounts of her own.

“Q. Do you know where she got that $750.00?

“A. Well, she owns quite a number of things that are strictly her own. I don’t know where she got that one. She can testify to it.

“Q. Isn’t that rather coincidental, Mr. Cahill, that she would make a deposit in the same amount as this check, the day after you received it?

“A. Well, it would appear so. But I know that I got the money, but whether it was deposited or not I question.

# * # * #

“Q. Now Mr. Cahill, I will refer you to your testimony before the Lincoln county grand jury on the 31st day of March, 1954, and I will ask you whether or not you advised the grand jury or testified in the grand jury under oath that you cashed that check and deposited it in the Lincoln bank?

“Q. (A.) No; I think I stated that I had had it cashed but that I did not deposit it.”

When Cahill was shown the deposit slip he testified that he was sure he never prepared such a deposit slip.

In connection with this question concerning the initial disposal of the $750 check, the court reporter who took the testimony before the grand jury, read to the jury Cahill’s testimony before that body, Mr. Thornton, the Attorney General, and Mr. Hollen, the prosecutor, being present. We quote:

“Question: ‘Where was that money between the period of 1951 until now?’ —Answer: ‘In the Water Office of the City’.—Question: ‘Was that in cash?’—Answer: ‘It was in cash. They gave me a check, and I cashed it, because I thought we were going to have a deal very shortly, and I put it in cash in the Water District safe’.—Question: ‘Did you ever deposit that money in the bank? ’—Answer: ‘I did, when I gave them the check first, and—’— Question: ‘And when did you draw the cash?’— Answer: ‘Well, it was some time later, I closed out all my bank accounts when you sued me on behalf of Lincoln county without notifying me about it’.— Question: ‘Was that when you took out the cash?’ —Answer: ‘No; it was some time before I did that’. Question: ‘Do you recall how long before?’—Answer: ‘No, I don’t’.”

The court reporter also read from her notes taken at the grand jury session, the following:

‘ ‘ Question: ‘And you proceeded to cash the check and kept the currency in the safe?’—Answer: ‘Well, for a period of time it was in my account.’— Question: ‘In other words, you cashed it and put the money in your personal account?’—Answer: ‘Yes, that’s right, to begin with.’—Question: ‘Then you later transferred it? You later put currency in that amount in what?’—Answer: ‘In the Water District safe.’ ”

At the main trial the same matter came up on cross-examination—questions by Mr. Hollen.

“Q. Do you recall the further question by Mr. Thornton: ‘And you proceeded to cash the check and kept the currency in the safe?’—Do you remember that question?

“A. That’s right.

“Q. And do you remember that you answered: ‘Well, for a period of time it was in my account.’

“A. In my safe deposit box is what I testified to.

“Q. Do you recall that answer?

“A. No, I do not. Not the one you read.

“Q. You deny you made that answer?

“A. That’s right.

‘ ‘ Q. Now, do you recall a further question, after you made that response: ‘In other words, you cashed it and put the money in your personal account ? ’— — Do you remember that question by Mr. Thornton?

“A. No, I don’t. I don’t think he made it.

“Q. And do you recall answering to that question: ‘Yes, that’s right, to begin with.’--”

Again, Cahill testified, “I did not deposit the Water District check * * He added, “there had been a $600.00 deposit put in that account prior to that date.”

We note in passing that Mrs. Cahill, who was not in the room when her husband testified, made the following statement under oath, “I don’t ever recall a deposit of $750.00. ’ ’ She added that she could ‘ ‘ swear ’ ’ that the $750 was not placed in Mr. Cahill’s bank account.

Mr. McKinney, the man who was alleged to have taken the check to the bank, cashed it, and returned with the cash, testified as follows:

“Q. Were you ever requested by Mr. Cahill to take any check for any sum of money to the North Lincoln Bank at Taft and cash it?

“A. No sir.

“Q. Did you ever do such a thing?

“A. No sir.

“Q. Did you at any time ever do such a thing?

“A. No sir.

“Q. Did you at any time ever go to any bank for Mr. Cahill and bring him back cash?

“A. I never did.

“Q. Did you at any time ever go to any bank for Mr. Cahill and bring back any brown envelope?

“A. I never did.”

The testimony of Cahill contains intrinsic inconsistency and falsehood, even without reference to the contradictory evidence of other witnesses. The climax was reached near the end of the trial. After all the sworn averments that the money was not deposited in the bank, Cahill’s counsel made two announcements to the court, as follows:

“Mr. Hoy: If Tour Honor please, I think—it will shorten the matter, and it’s not very material anyhow—I think I think the testimony on that deposit—the question of whether or not that $750.00 check was deposited for a time, the testimony of the defendant was in error.”

After the head bookkeeper at the bank had again testified, Mr. Hoy said, “we will admit that the money was deposited.”

Now let us see if the judicial admission that the money was deposited was “not very material anyhow”.

We now turn to an analysis of the bank statements showing deposits, withdrawals and balances in the account of Otto W. or Goldie Cahill, from December 26, 1950 to January 13, 1954. The statements were identified by the head bookkeeper of the Lincoln Bank as identical to the originals which had gone to the depositor. They were received with “No objection”.

We will trace the ebb and flow of the balance in the bank account from the date of the Water District check down to the end of the year 1953. After the deposit of the $750 on June 12, the balance in the joint account was $1,016.64. This balance was reduced with each entry until July 5, 1951. The entry immediately preceding July 5, 1951 was still in excess of $750. It is shown on the statement as $836.72. On July 5 there was a deposit of $268.74 and a withdrawal of $509.67. We make the following simple computation:

Balance $ 836.72

Add deposit July 5,1951 268.74

N ew total 1,105.46

Deduct check 509.67

New balance $ 595.79

The new balance at the end of the day’s business shows on the bank statement as $595.79, which is $154.21 less than the amount of the trust fund. The withdrawal of this portion of the trust fund cannot be attributed to Mrs. Cahill. A copy of the check for $509.67 is in evidence. It was drawn by the defendant. The payee was the Lincoln Bank, and Cahill testified:

“Q. Now, you paid that note off to the Lincoln Bank on the 5th day of July 1951, did you not?

“A. I imagine I did, about that time.”

There can be no contention, and there is none, that any of the small checks or the $509.67 check represented any withdrawal of the $750 except for defendant’s personal use and benefit.

From July 5, 1951 and until the account was closed in January, 1954, the balance equaled or exceeded $750 during only two periods: (1) Between July 8,1952 and July 11, 1952, the balance varied between $836.42 and $755.16, but that balance was rapidly reduced by many small cheeks, the largest of which was $76, until on October 20, 1952, the balance was $255.98. (2) On October 21, 1952 the balance was augmented by a deposit of $2,213.84, and stood at about that figure for two days, but on October 23 a check was drawn for $2,112.00, reducing the balance on October 25, 1952 to $211.38. A copy of the check is in evidence. It was payable to the Coast Chevrolet Co. in the sum of $2,112.00 and was drawn by the defendant. This withdrawal cannot be charged to the defendant’s wife, yet it reduced the account until it was $538.62 short of the amount of the trust fund.

No one would suggest that any part of this sum represented an expenditure for the Water District. There was only one other check drawn between June 12, 1951 and January 13, 1954 which equaled or exceeded $120. That was a check for $125 drawn out on December 16, 1953, leaving a balance on that date of $104.97. No one has claimed that any of these small withdrawals were for other than personal use of defendant or his wife.

On various occasions between June 12, 1951 and January 13,1954 the balance was reduced to a nominal sum, as for example, $13.20 in January, 1952; $18.68 in June, 1952; $20.16 in January, 1953; $3.09 in June, 1953; and $4.01 in December, 1953. The account was closed on January 19, 1954 at $2.74.

The undisputed evidence establishes that at various times between July 3,1951 and January 13,1954, the defendant converted portions of the fund to his own use, and that by January 13, 1954, if not at an earlier date, lie had converted all of the fund, with the possible exception of $2.74. The indictment charged that defendant converted the fund to his own use and did also charge that he failed and refused to pay over the fund. There was no motion to require the state to elect whether it would stand on the conversion or on the failure to return the fund. The conversion and the failure to return were alleged to have occurred on the first day of February, 1954, but the date on which the conversion occurred was not a material allegation, and conviction could have been had on proof that the conversion occurred at any time within three years prior to the commencement of the action. State v. Wilson, 127 Or 294, 271 P 742. The period of the statute of limitations applicable to the crime charged was three years. ORS 131.110. The statute also provides that

‘‘ The precise time at which the crime was committed need not be stated in the indictment, but it may be alleged to have been committed at any time before the finding thereof and within the time in which an action may be commenced therefor, except where the time is a material ingredient in the crime.” OES 132.610.

It follows that conviction would have been proper on the undisputed evidence reviewed above, showing, (1) deposit of the fund and its conversion piecemeal after July 3, 1951 the last day on which the fund remained intact in the bank account, and (2) proof that the fund was never withdrawn as such but was used up by the personal withdrawals from the account. The conversion was all within the three-year period. If the state had never alleged or proved a failure to return the $750 to Naylor, it could have relied solely upon the conversion established by the evidence reviewed supra, and the fact that the continuing acts of conversion did not occur on the date specified in the indictment would be immaterial. The statute provided, in part:

“If any person shall receive any money, warrant or instrument in writing directing the payment of money for any * * * municipal or public corporation * * # or shall have in his possession any money, warrant or instrument in writing directing the payment of money belonging to such * * * corporation, or in which such * * * corporation has an interest, and shall in any way convert to Ms own use any portion thereof or shall # * * neglect or refuse to pay over or deliver any portion thereof, as by law directed and required * * * such person shall be deemed guilty of larceny * * *.” OCLA, § 23-525, as amended by Chapter 371, Oregon Laws, 1941; and see, OES 165.015 covering the same provisions, with slight verbal changes. (Italics ours.)

The error in admission of evidence later to be discussed was irrelevant to the question as to the original conversion of the fund. The logical conclusion is that the verdict of guilty was both necessary and proper if the jury performed its function, and it will be shown hereafter that the judgment should be affirmed despite an error committed in dealing with another issue of the case. It may be argued that the conversion of the $750 is not conclusively proven to have been done by the defendant Cahill. We have not overlooked the fact that the money was deposited in a joint account of Cahill and his wife. We assume that some of the checks were drawn on the fund by Mrs. Cahill, for she testified in general terms, “He puts it in and I take it out.” She did not, of course, say that she alone drew checks on the joint account and the undisputed evidence shows that the large checks were drawn by the defendant personally.

Several questions immediately arise to confront the defendant. The resolution of June 8, 1951 authorized transfer of $750 to the “personal account of the secretary.” Obviously this resolution referred to the account of Cahill on the books of the Water District— not to his personal bank account. But let us assume that the resolution authorized deposit in the “personal account” of Cahill at the bank. Did such resolution authorize deposit in a joint account subject to check by a third party (Mrs. Cahill) who was a stranger to the transaction? We think it will not be denied here that when a man deposits money in a joint account with his wife, he authorizes the bank to honor the checks drawn either by himself or his wife. Can a man accept trust funds belonging to the public and then deposit them and authorize the bank to pay them out on checks drawn by his wife for personal or family expenses? If Mrs. Cahill drew some of the small checks against the joint account, it was because Mr. Cahill had authorized it by depositing the money in the joint account. There is no more excuse for putting the responsibility on his wife than there is for placing it on the dead man Naylor. This is especially true in view of the fact that Mrs. Cahill expressly denied knowledge that the $750 was ever put in the joint account.

In view of the judicial admission by his attorney that the money was deposited in the personal joint account, and of the conclusive evidence that this account was reduced to nominal sum by withdrawals for personal use made by Cahill or his wife, with his authority, we have assumed thus far what seemed to us obvious— namely, that Cahill converted the money. It now seems appropriate, however, to examine our conclusion in that respect more closely.

It has been suggested, though not by the defendant, that the transaction of June 8,1951, whereby the Water Board authorized transfer of $750 to the defendant Cahill, and the check which was given him on the next day, resulted in the creation of the relationship of debtor and creditor between the Water Board and its secretary, Cahill. From this premise, the conclusion is drawn that the defendant would be entitled to use the $750 in his own business, or in any other way, and that his only obligation would be to cancel his indebtedness, either by buying the pipe for the District or by returning the money if the pipe were not bought. It is further argued that the Water District wanted ■defendant to treat the money as his own so that he might, as an individual, or disabled veteran, make a better bargain for the District. If that was the understanding of the District, it was not shared by Cahill, for he testified:

“My intention was to get the pipe we required, and probably turn that fund that I had back to the district and then they would issue a check for it.”

Cahill also swore that he “lacked the authority to purchase it until it had been inspected by the superintendent.” Certainly Cahill never claimed, nor does he now claim, that the District merely loaned him the money. His story given under oath is that the check of the Water District was cashed, and the money, in the form of $50 bills, put into an envelope. On direct examination he testified:

“ * * * The envelope was returned to me and the money has always been in cash in that envelope, and on the envelope I had placed ‘Property of the Taft-Nelscott-Delake Water District’. Some time later I put it in my safety deposit box—I don’t remember if it was that day, because we hade a safe in the district office. I told my wife if anything happened to me, there was money that belonged to the Water District down there and it was clearly marked and tagged, and to give it to them. * * * ”

He also testified as follows:

“Q. Did you nse it for any purpose during the time you had it?

“A. No.”

He said the money was out of the safety deposit box a “couple of times.” He was asked, “What would you do with it when you took it out?” He answered, “I think it was always in the Water Office safe.”

From the foregoing it sufficiently appears that Cahill repeatedly attempted to convince the jury that he had handled the fund in accordance with the strict requirements of a fiduciary dealing with trust funds. Had he been successful he would have avoided the necessity of justifying his use of the fund as his own. His attempt failed because he ultimately concluded that he must admit that the money was deposited in the joint bank account from which the undisputed evidence shows it was withdrawn by himself and his wife for personal use. At this point a distinction must be noted between three criminal statutes of this state defining three types of embezzlement. The first is embezzlement by officer, agent or servant. OCLA, § 23-523 (OES 165.005.) The second is embezzlement by bailee. OCLA, §23-524 (OES 165.010), and the third is embezzlement of public funds. OCLA, § 23-525 (OES 165.015.) Each of the three is given the name of larceny, though none of them define any act known as larceny at common law. None involve the common-law element of trespass to the possession of another. These crimes are designated “larceny” merely to indicate that the crime of embezzlement is equal to and shall he punished as larceny. State v. Reinhart, 26 Or 466, 38 P 822 (construing OCLA, § 23-523.) The decisions under all three statutes are properly collected in the Oregon Digest under the heading “Embezzlement”. Under the first section mentioned, an intent to defraud is necessary. State v. Hattrem, 140 Or 371, 13 P2d 618; State v. Cooke et al., 130 Or 552, 278 P 936; State v. Monk, 193 Or 450, 238 P2d 110. Even when felonious intent is a necessary element of the crime it is held that if a person unlawfully and with such intent uses the money of another for his own benefit he is guilty of embezzlement, though he had intended to return the money to the owner. State v. Cooke et al., supra. Embezzlement under OCLA, § 23-523 (OES 165.005) must be distinguished from embezzlement by a bailee, and embezzlement by converting public funds, in this important particular. Under the last mentioned statutes, intent to defraud is not an element of the crime. State v. Stiles, 81 Or 497, 160 P 126; State v. Chapin, 74 Or 346, 144 P 1187 (larceny by bailee); and State v. Ross, 55 Or 450, 104 P 596, 106 P 1022. The Eoss decision bears on the pending case in other respects. It was there held that a conversion of public funds

“is fully accomplished by any exercise of dominion over a chattel without the authority of the owner, whereby the true owner is deprived of the enjoyment of his chattel. And it is wholly immaterial whether the person so converting did it for his own personal advantage or not. * * *” 55 Or at 470.

As held in other jurisdictions, the only intent which must be proven on a charge of conversion of public funds or of larceny by bailee, is the intent to do the prohibited act. Mansur v. Lentz, 201 Mo App 256, 211 SW 97; Tidd v. State, 42 Ohio App 66, 181 NE 280; People v. Warren, 122 Mich 504, 81 NW 360; State v. Sheegog, 47 Okla Cr 421, 288 P 993; Landrum v. State, 60 Okla Cr 259, 63 P2d 994. In Tidd v. State, supra, the court said of a statute prohibiting the conversion of public funds:

“* * * The courts have interpreted the foregoing provisions to intend in their effect that it is a criminal conversion of public funds for an officer who i,s intrusted with the control and expenditure of such funds to use them for any purpose other than one provided by law. * * *”

While the crime of conversion of public funds in most respects resembles the crime of embezzlement by officer, agent or servant, the analogy fails when intent is in question. It might be conceded that if A gives to B $10 with which to purchase goods for A, and if B, in good faith mingles A’s money with his own, the mere mingling would not make B an embezzler, there being no fraudulent intent, though if he later used the money as his own, with fraudulent intent, he might be guilty. The supposed illustration is inapplicable in the case at bar. The plain purpose of the statute under which Cahill was tried and convicted is to protect the public against any use of public funds for any but public purposes. It applies not only to any money owned by a public corporation, but to any money in which it has an interest. If the person receiving such money even loans it without interest, he is guilty of larceny. If we assume that Cahill was to buy pipe and pay for it with his own check as he once intimated he had done, that would not imply that he could in the meantime use the public funds for the payment of private obligations.

From the Restatement of Trusts we read:

“Agent may also be trustee. A person may be at the same time both an agent and a trustee for the same person. If an agent is entrusted with the title to property for his principal, he is a trustee of that property.” Restatement of the Law, Trusts, §8.

To the same effect see 1 Scott on Trusts, § 8, p 65; and see, Minneapolis Fire & Marine Ins. Co. v. Bank of Dawson, 193 Minn 14, 257 NW 510. The same authority states the universal rule:

“There is a fiduciary relation between trustee and beneficiary (see § 170); there is not a fiduciary relation between debtor and creditor as such.” Restatement of the Law, Trusts, § 12.

Can it be seriously argued that there was no fiduciary relationship between the Water District and Cahill who was both a commissioner and its secretary when he received the public funds? Again it is said:

“If one person pays money to another, it depends upon the manifested intention of the parties whether a trust or a debt is created. If the intention is that the money shall be kept or used as a separate fund for the benefit of the payor or a third person, a trust is created. If the intention is that the person receiving the money shall have the unrestricted use thereof, being liable to pay a similar amount whether with or without interest to the payor or to a third person, a debt is created. ’ ’ Restatement of the Law, Trusts, § 12g.

Can it be said that the Board of Commissioners intended to permit Cahill to use the money to pay personal debts, merely because they intended that he buy pipe for the District with it? It is even highly doubtful whether they could lawfully turn public funds over to a trustee, to say nothing of lending it to a borrower. See 1 Restatement of the Law, Trusts, § 12g, Illustration 10, p 44.

From 1 Scott on Trusts, we quote:

“It often happens that the parties to a transaction do not make it perfectly clear whether their intention is by the transaction to create a debt or a trust. The test is whether they intended that the person receiving the money should have the beneficial as well as the legal interest in it. If he was intended to have the beneficial and legal interests, if he was intended to have the use of the money as his own and to be under a merely personal liability to pay the money to the pay-or or to a third person, a debt is created. If, on the other hand, it was intended that the beneficial interest in the money should remain in the payor or should pass to a third person, a trust is created. * * * ” 1 Scott on Trusts, § 12.2, p 86. See also, 1 Scott on Trusts, § 12.7, p 98.

In State v. Florian, 355 Mo 1169, 200 SW2d 64, the defendant was charged with embezzlement and his conviction was affirmed. Defendant procured checks from Sheehy for the purpose of using the proceeds to buy property for Sheehy. On appeal defendant contended that if there was a conversion it was a conversion of the cheeks, not of the money derived from cashing them, “because he had no right to cash the checks unless they constituted a loan”, and that the relationship between defendant and Sheehy was that of debtor and creditor so that there could be no embezzlement. The court said:

“* * * The premise is false. The evidence shows that he procured the cheeks from Sheehy for the purpose of using the proceeds to buy the property for Sheehy. This constituted him an agent with authority to cash the checks and use the proceeds for the purpose specified. Therefore, the proof shows embezzlement of money, not checks. State v. Ross, 312 Mo. 510, 279 S.W. 411; State v. Miller, 332 Mo. 307, 57 S.W.2d 1080; State v. Watkins, 337 Mo. 901, 87 S.W.2d 184; State v. McCawley, Mo.Sup., 180 S.W. 869. There is no merit in appellant’s contention that the relation of debtor and creditor was created. The proof is that appellant got the checks to nse the proceeds not for his own benefit, bnt to pay to the real estate company for Sheehv. * * *”

The case is directly in point. The reasoning would have been even more convincing if defendant had been dealing with public funds, as in the case at bar. The same reasoning was applied in People v. Hill, 2 Cal App2d 141, 37 P2d 849. And see, People v. Meadows, 199 NY 1, 92 NE 128; Brown v. Christman, 126 F2d 625; American Surety Co. of New York v. Greenwald, 223 Minn 37, 25 NW2d 681; Dunlop Sand & Gravel Corp. v. Hospelhorn, 172 Md 279, 191 A 701; Tate v. Emery, 139 Or 214, 9 P2d 136; State v. Browning, 47 Or 470, 82 P 955; Jansen v. Tyler, 151 Or 268, 47 P2d 969, 49 P2d 372.

In State v. Cooke et al., supra, the defendant argued that the relation of debtor and creditor was created, rather than that of trustor and trustee. The contention was rejected by this court.

Finally we turn to the statute defining the powers of the Water District. That District was formed under the provisions of OCLA, § 116-1001, et seq. In that statute we find no authority, express or implied, which would authorize the District to create a relationship of debtor and creditor between itself and one of its officers. On the contrary, it is expressly provided that

“ All moneys of such corporation shall be deposited in one or more banks to be designated by the commissioners, and shall be withdrawn or paid out only when previously ordered by vote of the commissioners, and upon checks signed by the treasurer and countersigned by the chairman, or in his absence or inability to act, by the secretary. * * *” OCLA 116-1015.

Cahill was chargeable with knowledge that any such arrangement amounting to a personal loan would be ultra vires the corporation. Neither he nor we can now immunize him from liability on the theory that the money was delivered to him with the understanding that he might use it for personal expenses as a debtor of the District. We conclude that the deposit by Cahill of the funds of the District in the joint account subject to check, was a conversion of the fund. But the essence of the crime was the use of the fund over a period of time as his own, and in either event he was guilty of conversion of public funds. While felonious intent to defraud was not an element of the crime, there was ample evidence to establish such intent. It follows that the defendant was guilty on the undisputed evidence, even if he later returned the money, which we think he did not do. Mr. Cahill attempted to shift the responsibility to a dead man in whom he had expressed complete confidence—a man on whom there was no hint of guilt expressed by any person. Barring the questioned signature on the receipt, and Cahill’s testimony, there is not a scintilla of evidence that Naylor received the money, and it was never found by the officers of the District, as would surely have appeared if Naylor got the cash and did not steal it. The jury could have found that the signature of Naylor was a forgery even if no other signatures had been used for comparing.

The judicial admission that the money was deposited in his bank account has a damning effect on defendant’s entire case. It establishes that he testified falsely. His statement that he was “positive” that McKinney cashed the $750 check and returned the cash in an envelope is necessarily false. If it were true, the bank statement would show both the deposit and the withdrawal of $750 on June 12, 1951. But the statement shows deposit and no withdrawal. The money went into the bank, but there is no scintilla of evidence that it was ever taken out except as it was drawn out in driblets on checks of Cahill or his wife. Cahill offers no explanation or theory as to how the fund in the bank was translated into $50 bills in an envelope, as testified to by him. In truth, he precluded himself from offering any such explanation by claiming that he had the cash in an envelope from the time McKinney was supposed to have gotten it on June 12, 1951. In view of the undisputed record he can now claim no more than that he used the fund and violated his trust, but dug up $750 somewhere else and paid it to Naylor on January 21, 1954.

Essentially, the evidence thus far considered is inconsistent with the existence of any cash fund in an envelope.

Having established the deposit and nonwithdrawal of the $750 in cash, we proceed with consideration of Cahill’s story concerning his subsequent dealings with the money and with the Water District.

It was testified that Cahill said that when the material was available he would have to act at once and have the funds to pay at the time, and that the federal, departments would “soon have available” items for purchase. By his own testimony he kept the $750 for over two and one-half years. The matter apparently slept until the meeting of December 29, 1953. The minutes were signed by Cahill as secretary, but his name was later crossed off by reason of the recall proceedings instituted against Mm. The minutes read as follows:

“* * * the Secretary [i.e. CaMll] reported on a confidential developemnet [sic] in that area, and that in order to meet an anticipated service demand, the Special Purchase Fund authorized to be used at the discretion of the Secretary when a substantial saving could be made, had been obligated for new 4", ten guage [sic], Dipped & Wrapped Pipe, said pipe being surplus from military requirements.” (Italics ours.)

Witness SMelds testified that Cahill, the secretary, made the statement “that he had made a purchase of 3100 feet of four-inch standard steel pipe dipped and wrapped, subject to the inspection of our superintendent, and that he had sent his certified cheek for $800.00 to cover the purchase.” Shields, the clerk of the Board, testified that at a meeting on January 8, 1954, Cahill, in answer to a question about the “special purchase fund” said, “it was not available yet, but would be in a short time, or words to that effect”-— “referring to the pipe”. SMelds also testified that at the Board meeting of January 14, 1954, Cahill “again stated that he had ordered the 3100 feet of pipe, and it would be available in a short time.” The minutes recite “Commissioner Cahill reported that the material would be available in about 30 days.” The undisputed evidence is that defendant never told the Board the details of the purported deal, or with whom it was made.

In a deposition taken in a civil action by the Water District against CaMll, he testified somewhat vaguely concerning the deal, as follows:

“Q. And, what department of the Federal Government was to have this material?

“A. Oh,--the Federal Security Administration--I mean, the Federal--it was an agency in Portland. It was General Services Administration was one of them. They handle the disposal of surplus materials within governmental agencies. I had the occasion to write them on another matter and they suggested to contact the Army Engineers, the Atomic Energy Commission, and some others for something that I was interested in.”

He was asked if he purchased any property for the district, and answered, “I did not”, but claimed he made a “tentative arrangement” for some materials. He was asked, “How much”, and he answered, “I forget the amount now”. He was asked the price, and answered, “I don’t recall.”

He acknowledged his signature on the minutes of December 29, 1953, admitted that he prepared them, and finally said that they were in error and that he did not “obligate” the money for the purchase of any materials. He denied that he had stated to the Board that he had bought the pipe for $800 and sent a certified check in that amount. He was contradicted by witnesses Shields, Stager, Baxter, Williams, Bolton, Reed, and Brown. He denied that he had reported that the pipe would be ready in about 30 days, as shown in the minutes. He denied that he made the deposit slip for $750, yet he finally admitted that he did deposit the money. He said he did not recall testifying before the grand jury that for a time the money was in his account, yet the minutes of the court reporter show that he did so testify.

Cahill’s testimony concerning the correspondence, or alleged correspondence, relative to the purchase of the pipe, is enlightening. He said it was in the District files. Again, “The correspondence is in the office.” Attorney Stager testified that prior to the taking of the deposition, lie served notice to produce all documents relative to the purchase, or to the money. He wanted the correspondence, "but no correspondence was produced. At another time Cahill said the correspondence was in his personal file. But he told "Williams, his successor as secretary, that it was in the files. The clerk searched the files, but found nothing, according to several witnesses. The defendant’s attitude of helpfulness vel non is illustrated, as follows: On January 25, 1954, the clerk of the District wrote Cahill the following letter:

“Dear Col. Cahill:

Relative to the $750.00 procurement fund used in the purchase of War Surplus Material for the District.

On instructions of the Secretary of the Board, a thorough search of the files in this office has been made for a copy of the letter of transmittal to the governmental department handling this matter. No such letter has been located.

In the event you do not have a copy of the letter in your files, the Secretary requests that you furnish this office with the name and address of the department, to which a request may "be made for a copy of the letter.

Yours very truly,

J. C. Shields

Chief Clerk”

In reply and on February 6, 1954, Cahill wrote:

“Board of Commissioners

Taft-Nelscott-Delake Water District

Nelseott, Oregon

Gentlemen:

With reference to your letter of recent date, you are advised that an examination of the proper records will disclose that the Treasurer relieved me of any further responsibility or connection with the matter prior to the date of your communication.

Tours very truly,

Otto W. Cahill”

This was a strange attitude to be taken by a man who had received a trust fund and who had a duty to make full disclosure.

Cahill was represented by his counsel at the deposition. At that time Mr. Hoy stated that there was no contention that anything was purchased.

Cahill, as a witness in the criminal case, said the envelope with the cash in it was returned to him by McKinney, and “the money has always been in cash in that envelope”.

Witness Stager testified that Cahill said the pipe had been ordered and that a certified check had been sent and that “This was a very good bargain.”

Witness Baxter confirmed that Cahill said he had sent a check for $800 for the pipe.

Witness Williams testified that at a meeting of January 14, 1954 “It was understood during this conversation that the $750 was asked to be returned to the Board” and that Cahill explained that he had used the $750 plus an additional $50 and had given a certified check to some company for surplus pipe. The pipe was 3,100 feet of 4-inch. He said Cahill told the Board it owed him an additional $50. Witness Bolton confirmed the testimony of Williams. The testimony was confirmed also by that of Allen Reed, the editor of a local paper, and Burt Brown. Cahill denied that he claimed $50 from the Board or ever gave a certified check.

Cahill testified that he thought the $750 had been in the Water District safe “a couple o.f times”. He testified that he did not have the combination to the safe, and then admitted he had “access to where they kept the combination.” He testified that he didn’t know whether the minutes of January 8 were false. Cahill testified that he did not remember being asked at the grand jury session with whom he made the agreement, and that he did not answer, “Well, a friend of mine in Portland.” The court reporter’s notes show that his testimony was as follows :

“Question: ‘Who did you make that agreement with?’—

“Answer: ‘Well, a friend of mine in Portland.’—”

It will be recalled that defendant on June 8, 1951, told the Board, concerning items available for purchase “by disabled veterans and other individuals.” He also testified that he wrote to the General Services Administration, as an official of the Water District, “about four times since about 1951.” He “thinks” he wrote Washington, D. C., “and it was referred to the Seattle office * * Question: “Don’t they have an office in Portland?” Answer: “Yes.” Question: “Did you ever contact the Portland office?” Answer: “No.”

This case has been thought to depend on the question of the return of the money to Naylor on January 21, 1954. The first question is, where did Cahill get the cash to give to Naylor? There is no answer offered which is not inconsistent with the judicial admission that he deposited the money in his account and with the proof that he converted it piecemeal. Cahill testified on deposition that he told Baxter that he had turned the funds over to Naylor. Question: “did you state to Mr. Baxter at that time that you had given Jack Naylor a certified check for $750.00?” Answer: “I did not.” Baxter testified that Cahill told him that he had given Naylor a check.

Commissioner Baxter testified concerning a meeting and conversation with Cahill, as follows:

“A. * * * I thought I would like to talle to him regarding the matter and I called him up on the phone and asked him if I could see him for a few minutes, and he said, Yes, come on over; so I went over, and I said, You did not answer the letter that the board sent you regarding the correspondence in the file, and he said, Well, it made me a little sore that they registered the letter, and he said, However, I have the correspondence in my personal file, and he says, I took the correspondence and I checked, with the intention of going to Mr. Naylor’s house and when I got downtown I saw Mr. Naylor on the street and I called him over into my car and I gave him the papers and the check and a receipt. He said Mr. Naylor read the receipt, signed it and gave it back to him. * * *” (Italics ours.)

Baxter had been a friend of Cahill. His testimony casts serious doubt as to the entire story concerning the alleged return of the cash to Mr. Naylor. The defendant goes to great length to give the details of a purported return of the cash at Naylor’s house. Yet, if his friend Baxter is not a perjurer, Cahill had told him of the same purported transaction as occurring in a car on a downtown street.

We have only scratched the surface of the inconsistencies and falsehoods to be found in the testimony of the defendant. The jury was necessarily required to decide whether substantially all of the public officials who appeared for the prosecution had testified falsely, or whether Cahill had done so.

In a case as flagrant as this, the jury could properly have found that the signature of Naylor was a forgery, even if no other signatures had been offered or received for comparison. The experts testified convincingly to intrinsic evidence of forgery apparent from a mere examination of the questioned signature and without reference to its comparison with other signatures. Exhibit 37 was an enlargement of the signature appearing on the questioned document. Even to the inexpert eye it shows characteristics suggestive of a tracing, as does Exhibit 34, a very clear photograph of the same signature. Stanley MacDonald, an experienced and highly qualified expert, testified, in part, as follows:

“The Witness: My conclusion that the signature John D. Naylor on the face of State’s Exhibit 34 is a forgery is based upon the facts that the signature was not written with a flying pen—may I explain that to the jury?—a flying pen is where the pen is travelling across the paper as it comes in contact with it leaving a sharply pointed or tapered beginning stroke and is still travelling across the surface of the paper as it leaves the surface of the paper leaving a sharply pointed final stroke. Now, a flying pen also leaves thin and wide lines, that is, thin lines and shaded lines, and that is caused by the bouncing act of the pen as it crosses the paper—that is called variation in pen pressure. Now, in the questioned signature John D. Naylor disclosed upon State’s Exhibit 37 we have blunt beginnings, a tremulous line quality which indicates very slow speed; and the same pressure throughout, the bouncing act of the pen has disappeared entirely—the pressure is constant throughout the entire signature, and at endings or terminals the ends are all blunt, which indicates that the pen in starting this signature rested on the paper before it started to move and then moved slowly through the form of the signature and as it come to the end of the various sections of the signature it abruptly stopped and was lifted and started in the next section of the signature. Now, that leaves a line of the same width throughout the questioned signature, and we have the blunt beginnings and endings, which shows it was not written with a flying pen— it was written slowly and carefully, and the tremor disclosed here, that is, the little jiggle in the line throughout is the indication of very slow speed in writing. * * *”

After presenting testimony based on comparison, the witness continued:

“* # * In addition to that, referring to the questioned signature on the face of State’s Exhibit 37, in the capital D there is a pen lift at a point where there logically would be no pen lift, that is, the pen is stopped and lifted at that point in the body of the capital D, in John D. Naylor, then it is placed in contact with the paper again before it starts to move, in almost the same identical spot, leaving a joint or intersection between the stopping and starting of the travel of the pen, something like this —(indicating)--* *

The feature of the signature to which the witness referred is apparent on Exhibit 34 and on the enlargement, so that any layman can see it.

Similar testimony was given by the expert witness Alford.

Concerning the questioned document, the third expert witness testified that the signature “when enlarged * * * is very apparently a forgery. ’ ’

Time and space forbid discussion of many other circumstances which would have warranted the jury in finding the defendant unworthy of belief. To summarize: The evidence established a wrongful conversion of the fund which went into the defendant’s personal account and came out only in checks, not one of which has ever been identified, even by Cahill, as representing a withdrawal of any part of the fund as such.

It is submitted that this is the kind of case in which the court should invoke Article VII, § 3 of the Constitution of Oregon, and should affirm, notwithstanding the error. Surely it will not be argued here that Article VII, § 3 of the Constitution is unconstitutional. The questions then relate to its interpretation and to the propriety or duty of invoking it. There can no longer be any serious question as to the meaning of the provision. It authorizes either party to send up the whole testimony, the instructions to the jury, and any other matter material to the decision of the appeal. This was done in the pending case. The Constitution then imposes upon this court a condition precedent to the exercise of its power to affirm notwithstanding any error. Affirmance is authorized only (1) “after consideration of all the matters thus submitted” and (2) if the Supreme Court shall then be of the opinion that the judgment ‘ ‘ was such as should have been rendered”. In view of the express requirement that we may affirm only after consideration of all matters thus submitted and of the provision that the “whole testimony” may be “thus submitted”, it would amount to an unauthorized judicial amendment of the Constitution for us to hold that we cannot consider all of the evidence in deciding whether or not the judgment below should be affirmed “notwithstanding any error.” In this case we are not overthrowing the decision of a jury; we are upholding that decision.

It would be futile at this time to argue that the constitutional provision does not apply to criminal eases. The text of the amendment conclusively indicates that it was intended to apply to criminal cases, for it is

“provided, that nothing in this section shall be construed to authorize the Supreme Court to find the defendant in a criminal ease guilty of an offense for which a greater penalty is provided than that of which the accused was convicted in the lower court.” Constitution of Oregon, Art VII, § 3.

Furthermore, unless we are to throw to the winds all respect for our precedents, we must hold that the power is vested in this court to consider the “whole testimony” and affirm under the conditions specified.

The leading case on the subject is State v. Ragan et al., 123 Or 521, 262 P 954. In that case the defendant was convicted of the crime of assault and robbery being armed with a dangerous weapon. In instructing the jury the trial court committed clear error when it stated that the law presumes that a pistol employed in an assault was loaded, and then imposed upon the defendant the burden of proving beyond reasonable doubt that it was not loaded. From the unanimous opinion of this court, we quote:

“There being present the foregoing error, we do not belive that a reversal and a new trial is the only remedy for the situation. In order to save the expense, delay and inconvenience of starting anew the ponderous machinery of a new trial, whenever error crept into the record, the voters of this state in 1910 amended the state Constitution so that it now provides that if the Supreme Court shall be of opinion, after consideration of all the matters submitted to it, that it can determine what judgment should have been entered in the court below, it may ^direct such judgment to be entered: Art. VII, § 3e, Or. Const. We have read all of the testimoney and are thoroughly satisfied that the jury was well warranted in its verdict upon all phases of the case concerning which no error was committed. The jury thus found that the defendant committed an act of assault and an act of robbery. # * #

“In view of the fact that there is no error in that portion of the record which discloses that the defendant committed an assault, and robbed the complaining witness, the Circuit Court of Multnomah County is ordered to enter a judgment convicting the defendant of assault with intent to rob, as described in Section 1919, Or. L., and to sentence him to an appropriate penalty.” (Italics ours.)

The Ragan opinion involves two propositions. First, a man charged with assault and robbery being armed with a dangerous weapon and found guilty of that crime by verdict and judgment in the circuit court may be found guilty and convicted by judgment of the Supreme Court of assalut with intent to rob, although the charge on which he was tried below was for violation of OCLA, § 23-428 (now ORS 163.280) and the crime of which he was held guilty by the Supreme Court was for violation of a different statute, OCLA, § 23-427 (now ORS 163.270.) The second proposition in the Ragan case is the one which is relevant here. It goes not to the power of this court but to the propriety or duty of exercising acknowledged power. The error committed by the trial court related only to the charge that defendant was armed with a dangerous weapon. It had no bearing on the evidence which established that defendant committed an assault and robbed the victim. Thus our decision in State v. Ragan stands for the proposition that if we read “all of the testimony and are thoroughly satisfied that the jury was well warranted in its verdict” on the basis of evidence which was not tainted by the error, a con■viction will be upheld in this court. The bearing of the Eagan case upon that of Cahill is clear. In Cahill’s case we may with equal propriety say that we have read all of the testimony and that the jury was well warranted in finding the defendant guilty of the identical crime charged in the indictment, and this we may do on the basis of the conclusive evidence that he converted a part if not all of the public funds entrusted to him by personally withdrawing and authorizing his wife to withdraw these trust funds from the bank, and using them himself and permitting his wife to use them, for purposes not connected with his trust. This is a portion of the case “concerning which no error was committed”, for he was guilty of conversion long before he claims he got the receipt from Naylor—long before there was any questioned document for examination by experts. If he converted the fund in 1951 and 1952, the crime was complete, regardless of whether he repaid the District in 1954 or did not repay it and forged evidence of repayment. Dobbins v. United States, 157 F2d 259.

State v. Ragan does not stand alone. It has been cited with approval in State v. Wye, 123 Or 595, 263 P 60, and State v. Folkes, 174 Or 568, 150 P2d 17.

In State v. Adler, 71 Or 70, 142 P 344, defendant was convicted of receiving stolen property which was alleged to belong to a corporation, but there was no evidence that the company named was even a de facto corporation. On appeal this court “after consideration of the record and the evidence submitted” (italics ours) stated that it was of the opinion that the judgment appealed from was such as should have been rendered in the case, and judgment was affirmed “notwithstanding any errors * *

In State v. Karpenter, 120 Or 90, 94, 250 P 633, 251 P 307, this court said:

“But aside from all that the evidence is all before this court. According to the record, including the evidence, it is the duty of the court to affirm the judgment of the defendant under Article YU, Section 3c, of the Constitution. The defendant was tried by two different juries and convicted by both. A careful consideration of the testimony leaves no doubt in our mind, much less a reasonable doubt, that he is guilty. * * (Italics ours.) See also, State v. Newlin, 92 Or 589, 182 P 133; State v. Catholic, 75 Or 367, 147 P 372.

In State v. Newlin, supra, 92 Or 589, 182 P 133, the court said:

“* * * Admitting that the principal witness for the prosecution is a man of bad reputation, and that the person to whom defendant sold the liquor is of doubtful character, no sane, fair juryman could have listened to the testimony adduced and thereafter have entertained the least doubt as to the guilt of the defendant. And perhaps we could stop at this, so far as the principal contention is concerned, and base our decision upon Article YTI, Section 3, of our amended Constitution, but in deference to the able argument of counsel for the defense, we will consider briefly the objections urged by them.” See also, State v. Catholic, 75 Or 367, 147 P 372.

In State ex rel. Burghart v. Haslebacher, 125 Or 389, 266 P 900, defendant was charged with being the father of an illegitimate child. A verdict of guilty was returned. The ease was technically a civil proceeding, but due to its similarity to criminal cases, we quote:

“This case has required and received careful and minute scrutiny and consideration. Trifling errors have crept into the record as they are likely to do in any nisi prius trial, but after going over the testimony not once but several times the writer of this opinion can say that never in the whole course of his thirty-five years of experience on the bench has he examined a case in which the proven circumstances corroborated the testimony of a complaining witness to a greater extent than in the present instance. Were it a criminal case, where the element of reasonable doubt intervenes, he cannot imagine a jury hesitating for one moment to convict. And conceding that there may have been slight deviations from technical procedure, the result arrived at was correct.

‘ ‘ Subdivision 3c of Article VII of our Constitution provides that upon an appeal to this court the whole testimony may be sent up, as was done in the case at bar, and, if upon examination of the matters thus submitted, the Supreme Court shall be satisfied that the judgment should be affirmed, notwithstanding any errors committed on the trial, they may affirm it. This amendment blazes the way to true justice in this case and in like cases.”

State ex rel. Rivinius v. Bartlett, 141 Or 560, 18 P2d 590, involved a similar charge. The court said:

“We quite agree with appellant that part of the instructions given relative to corroboration were erroneous. If there were any doubt in our minds relative to the guilt of the defendant, such assignment would result in reversal. However, an examination of the entire record convinces us that the verdict rendered was proper. We therefore invoke the salutary provision of article VII, section 3c of the Constitution of Oregon, which authorizes this court to affirm the judgment notwithstanding the errors committed. Such action was taken in a similar case (State ex rel. Burghart v. Haslebacher, 125 Or. 389 (266 P. 900)), wherein the court said, ‘This amendment blazes the way to true justice * * V ” (Italics ours.)

In State v. Metcalf, 129 Or 577, 278 P 974, defendant was convicted of child stealing. The court said:

“We have attempted to review technically the proceedings incident to the trial, and do not find in them any error which, in our view, prevented defendant from having a fair trial. Seldom is a long drawn out trial like the present one conducted without some technical error creeping in. But even if such error had been committed, we feel assured from the evidence that the defendant took this child from the home of her parents for the vilest of purposes, kept her in concealment, lied as to his knowledge of her whereabouts, used her person for his own pleasure, and that he is clearly guilty as charged and, by subdivision 3c of Section 1 of Article VII of the Constitution, we would be fully authorized to affirm the judgment even in the face of technical error, but we are under no such necessity.”

Mount v. Welsh et al., 118 Or 568, 247 P 815, was a civil jury case for libel. This court said:

“* * * In the case at bar, the evidence is reported in its entirety. It follows that this court is empowered to make final disposition of the case and to render the judgment which should have been rendered below: State ex rel. Anderson v. Port of Tillamook, 62 Or. 332, 344 (124 Pac. 637, Ann. Cas. 1914C, 483). By a retrial of the case here, added responsibilities and additional labor devolve upon us. But our duty in the instant case, under the Constitution as determined by this court, seems plain. The case has been pending in the courts a long time. The litigation involved should come to an end. With the complete record before us, we are as well prepared to solve the facts and apply the law thereto as is the trial jury.”

Again, in State v. DeJonge, 152 Or 315, 51 P2d 674, we referred to the ‘ ‘ salutary mandate of Article VII, § 3 of our constitution.”

Relative to the duty imposed upon us by Constitution Article VII, § 3, see also, State v. Burke, 126 Or 651, 674, 682, 269 P 869, 270 P 756; State v. Cooke, 130 Or 552, 562, 278 P 936; State v. Friddles, 62 Or 209, 123 P 904.

In this critical time, when dockets are cluttered, and when good men must cringe before the tragic fact of the law’s delay, we see no merit in sending this defendant back for a new trial, when he has so conclusively proven himself guilty to the satisfaction of a jury and beyond reasonable doubt.

The constitutional provision emphasizes and broadens the salutary provisions of ORS 138.230 under which it has been often held that conviction will not be reversed for technical errors or defects which do not affect the substantial rights of the accused. If the constitutional amendment made no change in the law, it would be pertinent to inquire why it was adopted.

After the cases have been examined, one fact remains. The Oregon Constitution is our fundamental law. It applies a simple test as follows: This court is to consider “all the matters thus submitted”, and having done so, “if the supreme court shall be of opinion * * * that the judgment * * * was such as should have been rendered # * * such judgment shall be affirmed * * Constitution of Oregon, Article VII, § 3.

A trial is no longer a game of wits; it is a search for truth and justice. We have found truth in the evidence of the prosecution and justice in the verdict of the jury and judgment of the court. We have examined the other assignments of error and find them without merit. The judgment of conviction is affirmed on the authority of Article VII, § 3 of the Constitution of Oregon.