People v. Randolph — 24 N.Y. Crim. 376

Majority

p. 376

SUPREME COURT—APP. DIV.—SECOND DEPT.,

March 4, 1910.

THE PEOPLE v. WILLIAM J. RANDOLPH.

(136 App. Div. 661.)

Headnote

Misapproeiation of Money by County Treasurer—Penal Code, Sec. 472—Code Grim. Pro., Secs. 275, 276.

Prosecution under section 472 of the Penal Code against a county-treasurer for willful misappropriation of moneys received in his official capacity. The defendant demurred to the indictment upon the ground that it did not conform to the requirements of sections 275 and 276 of the Code of Criminal Procedure, and on the ground that it did not contain a plain and concise statement of the acts constituting a crime, and that the acts alleged did not constitute a crime. Indictment examined, and held, that the demurrer was properly overruled.

Appeal by the defendant, William J. Randolph, from a judgment of the Supreme Court in favor" of the plaintiff, rendei’ed on the 13th day of May, 1909, and entered in the office of the clei’k of the county of Rockland convicting the defendant of the ci'ime of willfully misappropriating moneys deposited with him as county treasurer of Rockland county, and also from an order overruling the defendant’s demurrer to the indictment.

Frank Gomesky (George A. Wyre with him on the brief), for the appellant.

Thomas Qagan, District Attorney, for the respondent.

The indictment was under section 472 of the Penal Code, which reads as follows: “ A county treasurer, who willfully misappropriates any moneys, funds or securities, received by or deposited with him as such treasurer, or who is guilty of any

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other malfeasance or willful neglect of duty in his office, is punishable by a fine not less than five hundred dollars nor more than ten thousand dollars, or by imprisonment in a State prison not less than one year or more than five years, or by both such fine and imprisonment.”

The indictment contains the usual formal allegations, and charges a violation of section 472 in the following language: “ The said William J. Randolph, late of the village of Nyack, in the town of Orangetown, coiuity of Rockland and State of New York, on all the days and times during the years 1904, 1905 and 1906, was the county treasurer of said county of Rockland, and the said William J. Randolph on the 30th day of November, 1905, at the village, town, county and State aforesaid, feloniously did willfully misappropriate certain money, the property of the county of Rockland, received by him as such county treasurer of said county of Rockland, and his possession as such county treasurer of said county of Rockland, to wit, the sum of five thousand dollars, lawful money of the United States, which said sum of five thousand dollars one Howard Gamer, who on all the days and times during the years 1904 and 1905, was tax collector of the town of Orangetown, aforesaid; on the'first day of March, 1905, paid to the said William J. Randolph as county treasurer of said county of Rockland, and which money was received by the said William J. Randolph, as such county treasurer of said county of Rock-land, and which said sum of five thousand dollars, was money collected for taxes, by the said Howard Gamer, as tax collector of the town of Orangetown, aforesaid, and which said sum of five thousand dollars was paid to and received by the said William J. Randolph, as county treasurer of the county of Rock-land aforesaid, on account of the taxes which was the duty of the said Howard Gamer, as tax collector of the town of Orange-town aforesaid, to pay to the said William"

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such county treasurer of the said county of Rockland, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity.”

The defendant demurred to the indictment on the grounds: (1) That it does not conform substantially to the requirements of sections 275 and 276 of the Code of Criminal Procedure; (2) that it does not contain a plain and concise statement of the acts constituting the crime intended to be charged therein; and (3) that the acts stated in the indictment do not constitute a crime.

The first ground of insufficiency in the indictment relied on by the defendant may be disposed of with the statement that a 'substantial compliance with the requirement of the statute is obvious upon a comparison of the indictment with section 276, and with a brief reference to the contention that the indictment does not meet the requirements of section 275.

Section 275 provides that the indictment must contain “ 2. A plain and concise statement of the act constituting the crime without unnecessary repetition.” What does the statute prescribe as the “ act ” constituting the crime for which this indictment was found? Clearly, the willful misappropriation by a county treasurer of moneys received by or deposited with him as such treasurer. Practically the same objection is involved in the defendant’s second ground of insufficiency. Both suggest the query, how could the crime have been more clearly charged under the statute ? The conceded facts are that the moneys were received by the defendant; that he deposited them to his credit as county treasurer; that he checked them out and disbursed them for purposes that do not appear in the record; that he has not accounted for these funds. It would have been impossible, under the circumstances, to frame an indictment specifying each particular act of misappropriation. The de

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fendant was by the indictment fully apprised of the amount, as well as the time and source of the payment to him of the fund in question; it was paid to him by one Gamer, collector of the town of Orangetown, on the 1st day of March, 1905; the conceded amount is $5,000. That the defendant was fully aware of the charge made by the indictment is evidenced by his own testimony. He admitted the receipt, deposit and disbursement of the moneys. He was apparently ready with the only defense he had; that is, the want of system in the bookkeeping in his office, the omission of 'his deputy to enter the receipt of the fund in his cash-book, and his own oversight in signing a report to the board of supervisors which made no mention of the item.

As to the third ground of insufficiency in the indictment assigned by the defendant it may be said that the facts stated do, if proved, constitute a crime. The_crime charged, is the willful misappropriation of moneys under the circumstances specified in the statute. The jury found from the circumstantial evidence, and the inferences deduoible from it, that the defendant had willfully misappropriated the moneys, and that he was, therefore, guilty of the crime charged beyond a reasonable doubt. The defendant had full opportunity to account for the moneys, and his defense was not so meritorious as to call for a reversal of the judgment. We think the demurrer was properly overruled, and that the judgment and order should be affirmed.

Hibschbekg, P. J., Woodward, Thomas, Rich and Burr, JJ., concurred.

Judgment and order affirmed.