State v. Ahrens

479 P.2d 786, 25 Utah 2d 222, 1971 Utah LEXIS 586

• Court: Utah Supreme Court
• Decided: January 11, 1971
• Docket: No. 12153
• Status: Published

Opinions

TUCKETT, Justice:

The defendant was found guilty in the District Court of Cache County of the crime of embezzlement and she is here seeking a reversal.

The defendant was a long-time employee of Logan City in various capacities. The defendant was specifically employed as a deputy city recorder. In addition to her duties pertaining to that job, she also handled the switchboard, acted as a receptionist, and with some other five employees of the city received moneys for parking meter fines, various licenses, taxes, and funds and fees pertaining to the city cemetery.

The defendant is charged with having embezzled $114 from Logan City on or about May 20, 1969. The evidence in the case indicated that on or about May 19, 1969, one Vera Makin delivered her check to the city sexton in the sum of $114, payable to the Logan City Cemetery. The check was delivered to the defendant at the Logan City Offices but the sexton was not given a receipt for the check. The check was regularly endorsed and deposited by the city treasurer and proper entries were made in the books of the city by the defendant. The cash register tape for the day in question did not record the $114 item. The defendant is accused of having taken the sum of $114 in cash from city funds. All six of the city employees who used the cash register, including the defendant, testified during the course of the trial that they had not misappropriated city funds.

Over the objection of the defendant the prosecution was permitted to show that on two occasions subsequent to the date on which defendant purportedly appropriated city funds there were delays in recording and posting the receipt of city funds by the defendant. However, the prosecution failed to show that any city funds were missing on those occasions.

On the second day of the trial one of the jurors paid a visit to the city offices and while there, he went over the layout of the offices in respect to where the defendant had' had her desk, where the city treasurer carried on her work, and where certain other city employees also worked. While at the city offices the juror talked with the city treasurer and some of the other personnel in and about the offices. A motion for a mistrial was made by the defendant which was denied by the court after the court had taken the testimony of the city treasurer and also that of the juror.

The defendant seeks a reversal upon three grounds. The defendant first contends that the city treasurer was charged with accountability and custody of city funds, and that the record fails to show that the defendant was entrusted with public moneys. It would seem that the record supports the proposition that the defendant, by reason of her employment with Logan City, did in fact receive and receipt for various funds coming to the city coffers. Nowhere does the defendant claim that the receiving and accounting for public funds was beyond the scope of her employment. It should be noted that the provisions of the Utah statute are sufficiently broad to embrace the acts charged against the defendant. The language of the statute is as follows:

Every officer, director, trustee, clerk, servant or agent of any association, society or corporation, public or private, who fraudulently appropriates to any use or purpose not in the due and lawful execution of his trust any property which he has in his possession or under his control by virtue of his trust, or secretes the same with a fraudulent intent to appropriate it to such use or purpose, is guilty of embezzlement.

Subsection (17) of Section 68-3-12, U.C. A.19S3, which deals with the rules of construction of statutes has this to say in part: The words “sheriff,” “county attorney,” “clerk,” or other words used to denote an executive or ministerial officer, may include any deputy, or other person performing the duties of such officer, either generally or in special cases; * * *. We therefore conclude that the charge here made against the defendant was properly laid under the provisions of the statute above referred to.¹

The second claim of error by the defendant goes to the misconduct of the juror in visiting the city offices and talking to the employees of the city. We are of the opinion that this contention of the defendant is meritorious and requires a reversal. If the efficacy of the jury system is to be preserved the courts cannot permit individual jurors to make private and individual investigations of the facts of the case they are impaneled to decide. We have no way of determining whether or not the conduct of the juror influenced his judgment in arriving at a verdict. We adhere to the rule stated in prior decisions of the court that the law requires of the juror such conduct during the time that his verdict may be above suspicion as to it having been influenced by any conduct on his part during the trial.² The conduct of the juror in this case goes beyond that of the usual amenities between jurors and acquaintances who appear upon the scene.

In view of the fact that this case must be returned for a new trial, we deem it appropriate to comment on the defendant’s third claim of error dealing with testimony concerning other discrepancies in the accounts and records of the defendant which the prosecution contends it is admissible to establish an intent, scheme or motive to misappropriate funds. The evidence fails to disclose that any funds were missing, and viewed as a whole, do not support the claim' that the discrepancies show a scheme on the part of the defendant to misappropriate public funds. It would seem to us that the evidence goes no further than to show errors in procedures in keeping the records of the city. The evidence does not show or tend to show either the guilt or innocence of the defendant and should have been excluded.

We are of the opinion that the court below erred in failing to grant a mistrial and the case is remanded to that court for a new trial.

CALLISTER, C. J., and HEÑRIOD, J, concur.

1 . State v. Dubois, 98 Utah 234, 98 P.2d 354.

2 . State v. Anderson, 65 Utah 415, 237 P. 941; State v. Crank, 105 Utah 332, 142 P.2d 178.