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  • For the appellant there was a brief by J.R. Sullivan, S.C. Downey and S.G. Parker, all of Laramie, and oral argument by Mr. Sullivan and by Mr. Parker. The court erred in receiving in evidence the reports, checks and funds of the State Examiner, which tended to prove twelve separate offenses. The court erred in denying defendant's motion to require the prosecution to elect upon which charge defendant should be tried. District Court clerks are required to collect fees in advance. 1160 C.S., and pay over fees coming into their hands. 7131 C.S. Was a legal demand prerequisite, to a prosecution for embezzlement? It was the duty of the County Treasurer to collect the fees. 1441 C.S. Defendant was required to make and file monthly reports, and pay over fees. 1160 C.S. If a demand is required, and three demands were made, and not complied with, there would be three separate offenses. On the other hand, if no demand was necessary, but two separate offenses were committed, defendant's motion to elect should have been sustained. Edelhoff v. State, 5 Wyo. 19, 31; Stockwell v. State, 27 O.S. 563; Bainbridge v. State, 30 O.S. 264; Myer v. The State, 4 Ohio Cir. Ct. 573; Ex Parte Ricord, 11 Nev. 287; People v. Hatch, 13 Cal. A. 521; 109 P. 1097; Trask v. People, 35 Colo. 83; 83 P. 1010. The Edelhoff case is cited with approval in People v. Hatch, (Calif.) 109 P. 1097. The court erred in excluding defendant's exhibits "A" to "T" being checks on hand held by defendant at the time information was filed. Nichols Ev. Vol. II, 1920; U.S. v. Camp, (Ida.) 10 P. 226. Embezzlement was not proven. 20 C.J. 413-14; High v. State, (Okla.) 28 L.R.A. (N.S.) 162, 9 R.C.L. 1296. The verdict is not supported by the evidence and is contrary to law. For the respondent there was a brief by Wm. O. Wilson, Attorney General and James A. Greenwood, Deputy Attorney General, both of Cheyenne, and oral argument by Mr. Greenwood. Errors alleged but not argued in defendant's brief are waived. Riordan v. Horton, 16 Wyo. 376; C.B. Q.R.R. Co. v. Lampman, 18 Wyo. 118. The stringency of the statute, relating to embezzlement, is relaxed where public officials are charged with embezzlement of public funds. State of Nevada v. Carrick, 16 Nev. Rep. p. 124; State v. Munch, 22 Minn. Rep. 73; Willis v. State, 134 Ala. 429, 33 So. 226; The People v. McKinney, 10 Mich. 89-90; Heilman v. State, 189 N.W. 304; State v. Noland, 19 S.W. 722; Commonwealth v. Butterick, 100 Mass. 6; Robinson v. State, 33 S.E. 57; Calkins v. State, 98 Am. Dec. 159; State v. Dawe, 177 P. 393. The Edelhoff case is cited with approval in State v. Nolan, supra. The present case differs from the Edelhoff case. That case is commented upon in State v. Dawe, 177 P. 393; where the distinction which we contend for was made. The evidence clearly established every element of the offense charged. It was the duty of appellant to collect fees in advance and pay them to the county treasurer at the end of each month. 1160 C.S. Also to report collections to the county commissioners monthly, 3374 C.S. and 1441 C.S., likewise, fines and penalties. Section 5, Article VII of State Constitution. This he failed to do, in violation of 7131 C.S. Errors not shown to be prejudicial, will not affect the judgment. Bank v. Gray, 24 Wyo. 30; Pardee v. Kuster, 15 Wyo. 379. The figures constituting funds coming into appellant's possession, were stated in his reports. There could be no conversion without possession. Cronberg Bros. v. Johnson, 29 Wyo. 22. It was a continuous transaction, and not separate embezzlements. There was substantial evidence in support of each element of the charge, most of which is admitted in appellant's brief. Appellant's contention that no demand was necessary under the provisions of Sec. 7131, make unnecessary to discuss that point. The doctrine of election is not applicable to the evidence in this case.
Judges
  • BLUME, Chief Justice.
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  • For the appellant there was a brief by J.R. Sullivan, S.C. Downey and S.G. Parker, all of Laramie, and oral argument by Mr. Sullivan and by Mr. Parker. The court erred in receiving in evidence the reports, checks and funds of the State Examiner, which tended to prove twelve separate offenses. The court erred in denying defendant's motion to require the prosecution to elect upon which charge defendant should be tried. District Court clerks are required to collect fees in advance. 1160 C.S., and pay over fees coming into their hands. 7131 C.S. Was a legal demand prerequisite, to a prosecution for embezzlement? It was the duty of the County Treasurer to collect the fees. 1441 C.S. Defendant was required to make and file monthly reports, and pay over fees. 1160 C.S. If a demand is required, and three demands were made, and not complied with, there would be three separate offenses. On the other hand, if no demand was necessary, but two separate offenses were committed, defendant's motion to elect should have been sustained. Edelhoff v. State, 5 Wyo. 19, 31; Stockwell v. State, 27 O.S. 563; Bainbridge v. State, 30 O.S. 264; Myer v. The State, 4 Ohio Cir. Ct. 573; Ex Parte Ricord, 11 Nev. 287; People v. Hatch, 13 Cal. A. 521; 109 P. 1097; Trask v. People, 35 Colo. 83; 83 P. 1010. The Edelhoff case is cited with approval in People v. Hatch, (Calif.) 109 P. 1097. The court erred in excluding defendant's exhibits "A" to "T" being checks on hand held by defendant at the time information was filed. Nichols Ev. Vol. II, 1920; U.S. v. Camp, (Ida.) 10 P. 226. Embezzlement was not proven. 20 C.J. 413-14; High v. State, (Okla.) 28 L.R.A. (N.S.) 162, 9 R.C.L. 1296. The verdict is not supported by the evidence and is contrary to law. For the respondent there was a brief by Wm. O. Wilson, Attorney General and James A. Greenwood, Deputy Attorney General, both of Cheyenne, and oral argument by Mr. Greenwood. Errors alleged but not argued in defendant's brief are waived. Riordan v. Horton, 16 Wyo. 376; C.B. Q.R.R. Co. v. Lampman, 18 Wyo. 118. The stringency of the statute, relating to embezzlement, is relaxed where public officials are charged with embezzlement of public funds. State of Nevada v. Carrick, 16 Nev. Rep. p. 124; State v. Munch, 22 Minn. Rep. 73; Willis v. State, 134 Ala. 429, 33 So. 226; The People v. McKinney, 10 Mich. 89-90; Heilman v. State, 189 N.W. 304; State v. Noland, 19 S.W. 722; Commonwealth v. Butterick, 100 Mass. 6; Robinson v. State, 33 S.E. 57; Calkins v. State, 98 Am. Dec. 159; State v. Dawe, 177 P. 393. The Edelhoff case is cited with approval in State v. Nolan, supra. The present case differs from the Edelhoff case. That case is commented upon in State v. Dawe, 177 P. 393; where the distinction which we contend for was made. The evidence clearly established every element of the offense charged. It was the duty of appellant to collect fees in advance and pay them to the county treasurer at the end of each month. 1160 C.S. Also to report collections to the county commissioners monthly, 3374 C.S. and 1441 C.S., likewise, fines and penalties. Section 5, Article VII of State Constitution. This he failed to do, in violation of 7131 C.S. Errors not shown to be prejudicial, will not affect the judgment. Bank v. Gray, 24 Wyo. 30; Pardee v. Kuster, 15 Wyo. 379. The figures constituting funds coming into appellant's possession, were stated in his reports. There could be no conversion without possession. Cronberg Bros. v. Johnson, 29 Wyo. 22. It was a continuous transaction, and not separate embezzlements. There was substantial evidence in support of each element of the charge, most of which is admitted in appellant's brief. Appellant's contention that no demand was necessary under the provisions of Sec. 7131, make unnecessary to discuss that point. The doctrine of election is not applicable to the evidence in this case.
Judges
  • BLUME, Chief Justice.
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Smart Summary

Case Summary — No. 1627 (November 19, 1930)

Factual and Procedural Background

The defendant, clerk of the District Court of Albany County, was charged with embezzling $3,256.24. He failed to report the income of his office for the period April 1, 1928 to April 1, 1929 until April 4, 1929, and failed to pay that income into the County Treasurer's office as required by law. On April 3, 1929 the defendant delivered twelve separate checks to the County Treasurer (representing the twelve months' income) totaling $3,304.90; those checks were presented to the bank and payment was refused for lack of funds. The Board of County Commissioners had, beginning as early as December 1928, directed the county clerk to demand reports from the defendant; those demands were repeated while the defendant continued to fail to report. The county treasurer also made demand after the checks were dishonored. The defendant was charged with embezzlement on April 27, 1929, tried, convicted, and appealed. The judgment of conviction was affirmed by the Supreme Court.

Legal Issues Presented

  1. Whether, under the statutory scheme involved (notably Section 7131, Wyo. C.S. 1920, in conjunction with Sections 1160, 1441 and 3374), the defendant's failure to report and pay monthly fees gave rise to a single charge of embezzlement covering the aggregate amount discovered on demand, or whether it constituted multiple separate offenses (one for each month) requiring the prosecution to elect which monthly offense it would pursue.
  2. Whether a formal demand by the "proper person or authority" is a statutory prerequisite to criminal liability under Section 7131, or whether failure to comply with monthly reporting/payment requirements alone (without demand) constitutes separate crimes.
  3. Whether multiple demands (the Board's repeated demands and the treasurer's demand), if shown, convert the matter into multiple offenses or may be treated as one continuous transaction for purposes of prosecution.
  4. Whether certain defense evidence — specifically checks in the defendant's possession after resignation — was admissible and whether exclusion of those checks was prejudicial error.
  5. Whether the evidence admitted at trial was sufficient to prove that the defendant had received the monies he was alleged to have embezzled.

Arguments of the Parties

Appellant's Arguments

  • The court erred in admitting reports, checks and State Examiner funds in evidence because they tended to prove twelve separate offenses; the prosecution should have been required to elect which charge it relied upon.
  • Statutes requiring monthly report and payment should be construed to make each month's omission a separate crime without demand; alternatively, if demand is required, multiple demands create multiple offenses (one per demand/month).
  • Certain defendant exhibits (labelled "A" to "T" — checks on hand when the information was filed) were improperly excluded and should have been admitted.
  • Embezzlement was not proven; the verdict is unsupported by the evidence and contrary to law.
  • Appellant cited authorities (including Edelhoff v. State and several other cases) to support the view that separate failures over time can constitute separate offenses.

Respondent's Arguments

  • Errors alleged but not argued are waived. Certain authorities relax the stringency of embezzlement statutes when public officials are charged.
  • The Edelhoff case was distinguishable; here the statute under which defendant was convicted (Section 7131) requires a demand by the proper authority before criminal liability attaches.
  • Evidence established every element of the offense: the clerk had statutory duties to collect fees in advance, report monthly and pay the treasurer; he failed to do so in violation of Section 7131.
  • Where conversion is not shown to be separate and independent for each item, the transaction may be treated as continuous and not require prosecutorial election.
  • Any exclusion of evidence was harmless, and errors not shown to be prejudicial should not affect the judgment.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Edelhoff v. State (5 Wyo. 19) The opinion states this case held that monthly misstatements/appropriations led to separate offenses (conviction set aside in that case). The court distinguished Edelhoff because the present statute (Section 7131) requires demand; Edelhoff involved a statute not requiring demand and facts showing appropriation each month.
State v. Hebel (72 Ind. 361) The court quoted this authority for the proposition that demand is essential under a statute similar to Section 7131. Used to support the conclusion that under Section 7131 a legal demand by a proper authority is an essential element of the offense.
State v. Adamson (114 Ind. 216, 16 N.E. 181) Holds the failure/refusal must be "when legally required by the proper person or authority." Quoted to reinforce that demand is an essential element of the offense under the statute.
State v. Bancroft (22 Kans. 170) Under a statute making failure on demand embezzlement, the gist of the crime is refusal to pay upon demand; mere neglect when due is insufficient. Cited for the proposition that a demand must be proved before conviction for embezzlement under a demand statute; the court relied on it in construing Section 7131.
State v. Munch (22 Minn. 67) The opinion references it as supporting the importance of demand under analogous statutes. Listed among authorities demonstrating the demand requirement under similar statutes; cited as consistent support.
Adams v. People (25 Colo. 532, 55 P. 806) Interpreted a statute similar to Section 7131: the offense consists in failure, on proper demand, to turn over money collected by an officer regardless of the number of items composing it. Applied to support the view that when demand is made and officer refuses, the charge may be for the total unpaid amount rather than multiple offenses.
Wharton, Criminal Procedure (quoted) Stated principle: if an agent receives different sums and converts them "at one and the same time," only one embezzlement occurs. Used to support the proposition that separate receipts converted in one transaction constitute a single offense.
Gravatt v. State (25 Oh. St. 162) Held that separate receipts collected at different times can be one transaction and that election to prosecute separate items was not required. Quoted for the rule that conversion as one transaction precludes the necessity of prosecutorial election among items.
Campbell v. State (35 Oh. St. 70) Similar rule: if appropriation occurred after several receipts, the whole may be one transaction and one offense. Relied on to support the conclusion that a jury could find a single conversion of aggregated receipts.
State v. Dix (33 Wn. 405, 74 P. 570) Syllabus: a bill of particulars alleging sums received at different times and a failure to account at a certain day does not show that more than one offense is to be proved. Used to show that charging aggregated amounts by reference to a single failure date does not necessarily allege multiple offenses.
State v. Moyer (58 W. Va. 147, 52 S.E. 30) On similar facts, evidence of collections at different times composed one continuous conversion and did not require election by the prosecutor. Cited to support refusal to require election and to treat aggregated collections as one transaction.
State v. Berg (200 Iowa 627, 204 N.W. 441) Holds that when evidence shows failure to pay on demand, the charge may be for the total unpaid amount. Referenced as authority that a total amount may be charged where failure on demand is shown.
State v. Ring (29 Minn. 78, 11 N.W. 233) Recognized that official reports or similar statements can be competent evidence that the officer received funds. Applied to support the court's view that the defendant's reports and checks were competent to make a prima facie showing he had received the money.
McBride v. U.S. (C.C.A., 101 Fed. 821) Cited for the proposition that reports/certificates can be competent evidence against an official defendant. Used with State v. Ring to support the admissibility and evidentiary weight of the defendant's reports and checks.
Cronberg Bros. v. Johnson (29 Wyo. 22) Quoted earlier in the briefs: "There could be no conversion without possession." Referenced by respondent as support for the proposition that possession is a precondition to conversion; the opinion acknowledges that possession was shown by the reports and checks.
Riordan v. Horton (16 Wyo. 376) Listed in the respondent's brief for the procedural principle that errors not argued are waived. Cited by respondent to argue waiver of unbriefed points; the opinion references waiver doctrine generally when noting issues not raised below cannot be raised on appeal.
C.B. Q.R.R. Co. v. Lampman (18 Wyo. 118) Listed in the respondent's brief for waiver principle. Included in respondent's citations regarding waiver of unargued errors; the court noted waiver principles.
State of Nevada v. Carrick; Willis v. State; The People v. McKinney; Heilman v. State; State v. Noland; Commonwealth v. Butterick; Robinson v. State; Calkins v. State; State v. Dawe These cases were cited in the respondent's brief as authorities discussing treatment of public officials under embezzlement statutes. The opinion lists several such authorities in the briefs; the court relied principally upon the demand/aggregation authorities rather than treating each cited case in detail.
Gravatt / Campbell / other Ohio and state cases (already listed above) The opinion cites these cases for the single-transaction aggregation rule. Used collectively to justify treating the defendant's conduct as a single continuous transaction for purposes of prosecution.
Others cited in briefs (Stockwell v. State; Bainbridge v. State; Myer v. The State; Ex Parte Ricord; People v. Hatch; Trask v. People; U.S. v. Camp; High v. State; Bank v. Gray; Pardee v. Kuster) The opinion or briefs lists these authorities, but the opinion does not articulate a specific rule quoted from each. The court did not rely on these individual citations in its central analysis; where applicable, the court relied on the more directly on-point authorities summarized above.

Court's Reasoning and Analysis

The court began by reciting the controlling statutory provisions (Sections 1160, 1441, 3374 and the embezzlement statute Section 7131, Wyo. C.S. 1920). Sections 1160, 1441 and 3374 imposed the administrative duties to collect fees, report monthly and pay moneys into the county treasury; Section 7131 defined embezzlement in terms of an officer who "fraudulently fail[s] or refuse[s] ... when legally required by the proper person or authority, to account for, deliver and pay over" moneys.

The court framed the pivotal legal distinction: whether the statute under which defendant was convicted (Section 7131) required a prior demand by the proper authority as an element of the crime. It concluded that the demand requirement is essential under Section 7131 — relying on Indiana authorities (State v. Hebel; State v. Adamson) and other courts interpreting similar statutes — and therefore a mere failure to perform monthly duties does not, in itself, create separate criminal offenses for each month absent a demand.

The court then distinguished Edelhoff v. State (where monthly appropriation/false reports constituted separate crimes) on the ground that Edelhoff was decided under a statute without a demand requirement and where facts indicated appropriation at the end of each month. By contrast, in the present case there was no showing of appropriation at the end of each month; instead, the evidence showed that the defendant failed to comply with repeated demands and specifically failed to pay after the checks were dishonored. Under such circumstances — where an officer refuses to pay on demand — the charge can properly be for the entire unpaid sum at the time of demand rather than for multiple separate counts.

Regarding multiple demands made over several months, the court concluded that repeated demands may be treated as part of a continuous transaction and that the prosecutorial election doctrine should not be mechanically applied where the last demand effectively sought payment of the entire amount and a reasonable time to comply must be allowed.

On evidentiary matters, the court upheld the trial court's exclusion of certain checks in the defendant's envelope as either cumulative or failing to add material facts beyond testimony already admitted; the court treated any such exclusion, if erroneous, as harmless because the amounts and outcomes (cash realized, amounts cashed) had been fully shown by witness testimony. The court also held that the defendant's own monthly reports and the checks he gave to the county treasurer were competent to make a prima facie showing that he had collected the amounts reported, citing State v. Ring and McBride v. U.S.

The court thus found (1) the demand requirement satisfied by the County Commissioners' repeated directions and the treasurer's demand after the checks were dishonored; (2) that the evidence supported a finding the defendant had collected the money; and (3) no prejudicial error in the record. Accordingly, the conviction was affirmed.

Holding and Implications

Holding: The judgment of the trial court was Affirmed.

Implications:

  • The court held that under Section 7131, Wyo. C.S. 1920, an officer's criminal liability for failing to turn over public funds depends on a demand by the proper person or authority; where such a demand is made and the officer refuses, the prosecution may charge the total amount unpaid at the time of demand rather than requiring separate charges for each monthly omission.
  • The court treated multiple demands as capable of forming part of one continuing transaction when the last demand included the entire amount due; it therefore declined to require prosecutorial election as to individual months in the circumstances presented.
  • The exclusion of certain checks in evidence was held, at most, harmless since the substance of what they would have shown was already before the jury.
  • Direct effect: the defendant's conviction and sentence stand affirmed. The opinion applies established interpretive principles (demand as an element under demand statutes; aggregation of receipts into a single conversion where appropriation/conversion occurs as one transaction) rather than announcing a novel legal rule; the opinion therefore affirms these principles as applied to the facts but does not purport to establish sweeping new precedent beyond its statutory construction and factual holding.

This summary is confined to the information and reasoning expressly stated in the provided opinion and does not infer facts or authorities beyond that text.

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STATE v. CAMPBELL

BLUME, Chief Justice.

The defendant herein was charged with embezzling the sum of $3256.24, as Clerk of the District Court of Albany County. He failed to report the income of his office for the period of April 1, 1928 to April 1, 1929, until the 4th day of April, 1929, and in the meantime also failed to pay such income into the office of the County Treasurer, as required by law. On April 3, 1929, however, he gave to the County Treasurer twelve different checks, representing the income for the twelve preceding months, and on the next day filed in the office of the county clerk twelve different reports, showing the income of his office for each of the preceding twelve months respectively. The checks given by him, amounting to $3304.90, and corresponding to the amounts shown by the reports, were by the County Treasurer presented to the bank on April 3, 1929 and payment thereon was refused for want of funds. The testimony further shows that in the meantime, and as early as December, 1928, the Board of County Commissioners became uneasy about the failure of the defendant to report and directed the county clerk to make a demand on the defendant to do so. That demand was made as directed, and pursuant to the orders of the board of county commissioners, was repeated during the succeeding months, after the defendant continued in his failure to make reports. The evidence indicates that these demands for the reports implied or included a demand also for the payment of the money due into the office of the county treasurer, inasmuch as approval thereof would be withheld until such payment was made and inasmuch as, according to custom or otherwise, the reports included a certificate to the effect that such payment to the county treasurer had actually been made. Moreover, the demand for the money due from the clerk was also made by the county treasurer when the checks above mentioned were turned down by the bank. The defendant having failed to make the checks good, he was thereupon and upon April 27, 1929, charged with embezzlement as above stated, and after trial was duly convicted. From such conviction and the sentence thereon he has appealed to this court.

1. The sections of the statute applicable in this case are as follows:

Section 1160, Wyo. C.S. 1920, provides:

"All fees prescribed by statute for civil business, shall be collected in advance by the clerk of the District Court, and paid to the treasurer of the county at the end of each month, and such clerk shall be liable under his bond for the collection and payment of such fees."

Section 1441 provides:

"Every county clerk, clerk of the District Court, county and prosecuting attorney, sheriff, justice of the peace, constable, or other county or precinct officer by law elected or appointed, required or permitted to receive and pay over to the county treasurer any taxes, fines, fees, or other moneys whatsoever, shall, promptly at the close of each month, pay the same to the county treasurer, taking his official receipt therefor. Each such county or precinct officer shall also prepare a monthly statement of all such moneys so received by him, showing the sources of said receipts, and file the same with the county clerk for presentation to the board of the county commissioners."

Section 3374 provides:

"Every magistrate or other officer to whom any fines imposed under general laws of the state shall be paid for the use of the county, shall, at each regular meeting of the board of county commissioners, make a report of the total amount so collected, and all fines so collected shall be paid into the county treasury for the credit of the public school fund of the county, within thirty days after collection thereof."

The defendant was charged with embezzlement under Section 7131, Wyo. C.S. 1920, which, so far as applicable here, provides as follows:

"Any * * * clerk of any court * * * who shall fraudulently fail or refuse * * * at any time during such term (of office), when legally required by the proper person or authority, to account for, deliver and pay over to such person as may be legally entitled to receive the same, all moneys, choses in action, or other property which may have come into his hands by virtue of his said office, shall be deemed guilty of embezzlement."

It is the contention of counsel for the defendant that under these provisions of the statutes, since a clerk of the District Court is required to make a report at the end of each month, and pay the money received by him into the county treasury, a failure to do so at the end of each and every month is, without demand being made therefor, a separate crime, and that he cannot be charged, as was done in this case, with having embezzled a lump sum, collected during a number of months and not paid over as required by law; that, in other words, the defendant was charged herein with twelve different crimes and that the court erred in not sustaining the motion of the defendant to require the prosecuting attorney to elect on which of the separate crimes he relied for conviction. We are cited, as sustaining this contention, mainly to the case of Edelhoff v. State, 5 Wyo. 19, 36 P. 627. In that case the defendant, an employee of the Union Pacific Coal Company, was charged with having embezzled a lump sum of $208.40. This sum had been collected by the defendant from month to month for a period of eighteen months, during some of the time at the rate of $8.75 per month and during the remainder of the time at the rate of $8.25 per month. The court held that the evidence showed that the defendant was charged with eighteen different crimes, and set the verdict of conviction aside. The defendant was the agent for the collection of rent on a house. At the end of each of the months in question, he made a report, showing that the house had been vacant during the preceding month. This report was shown to have been false and that the defendant had in fact collected money during each of the months in question, and the court held that the report to the effect that the house had been vacant was tantamount to a denial of the receipt of the money and that a clear case of embezzlement under what is now Section 7134, Wyo. C.S. 1920, which required no demand, was made out for each and every one of the eighteen months. But the law and the facts in the case at bar are decidedly different. Sections 1160, 1441, and 3374, supra, requiring the defendant to make a report at the end of each month and pay the money collected into the county treasury, do not provide that the mere failure in that respect should constitute a crime, and we cannot, as counsel for the defendant do, read that meaning into them. The defendant became liable criminally only upon violation of Section 7131, supra, which requires that an officer failing to pay and deliver the money therein mentioned to the county treasurer shall be guilty of embezzlement only when "legally required by the proper person or authority" to make such payment. The demand so specified in that section is just as essential as the failure to account and the nonpayment of the money. This has been expressly held under the Indiana statute from which Section 7131 was taken. State v. Hebel, 72 Ind. 361, 363, and State v. Adamson, 114 Ind. 216, 16 N.E. 181, 182. In the latter case it was said that:

"In order that he (defendant) may be thus guilty, the failure and refusal must be 'when legally required by the proper person or authority.'"

In the case of State v. Bancroft, 22 Kans. 170, 211, under a statute making failure to pay over another's money upon demand embezzlement, the court said:

"Another matter of moment is that of demand. Under this third count the gist of the crime is the refusal to pay upon demand; a mere neglect to pay when due is insufficient and a demand must be proved before any conviction can be had."

See also State v. Munch, 22 Minn. 67, and Adams v. People, 25 Colo. 532, 55 P. 806. This difference in the statute under which the defendant was convicted in the case at bar and that under which the defendant in the Edelhoff case was convicted was clearly pointed out by the court. While in that case, as stated, the conviction was set aside because the evidence was construed as showing an actual appropriation at the end of each month of the money collected during the preceding month, there was nothing in the case at bar to indicate such appropriation. So far as appears in the record before us, the defendant did not embezzle the money until he failed and refused to comply with the demands which were made upon him. In such case, he may be charged with embezzling the whole sum found to be due at the time of the demand. It is said in Wharton, Crim. Proc., 10th ed., Vol. 1, Sec. 597:

"Where an agent or servant authorized to collect money receives from various persons different sums of money all of which he retains and converts to his own use at one and the same time, he commits but one embezzlement and must be so charged."

In the case of Gravatt v. State, 25 Oh. St. 162, in which a refusal to compel an election was upheld, the court said:

"The money, it is true, was received at different times and from different persons. But the collection of the several sums by the plaintiff in error was lawful and in due course of his employment. The evidence did not show a distinct and independent conversion of each sum, but the conversion of both sums as one transaction."

In the case of Campbell v. State, 35 Oh. St. 70, a similar action on the part of the trial court was upheld, the court saying:

"Upon the state of the testimony at the time this motion was made and overruled the jury might well have found that no part of the moneys collected by the defendant had been appropriated to his own use until after the several sums had been received and that the whole amount was converted and appropriated by the same act. Although the notes had come into the defendant's possession at different times and several sums collected thereon had been received at different times and places, yet if the whole amount was in his hands at one time and was embezzled in one transaction, it is quite clear that but one offense was committed."

In State v. Dix, 33 Wn. 405, 74 P. 570, one of the syllabi reads:

"A bill of particulars concerning an information for embezzlement setting out that definite sums were entrusted to the accused at different times and that at a certain day he failed to account for these sums does not show that more than one offense, continuing for some time, is to be proved."

In the case of State v. Moyer, 58 W. Va. 147, 6 Ann. Cas. 344, 52 S.E. 30, it appears that defendant, who was accused of embezzlement, was under contract to make reports of collections and to remit all money collected weekly, just as the defendant in the case at bar was under duty to do monthly. The error assigned in that case will appear from the court's opinion, which in part is as follows:

"It is assigned as error that the court permitted the State to introduce evidence of a number of distinct transactions, in order to make up the aggregate sum alleged to have been embezzled. It is true the evidence shows that the money which the defendant is charged with having embezzled was collected by him at different times and from different persons, but the collection of these several sums by the defendant was lawful, and in the due course of his employment, and if there was shown to be a conversion, it was not a distinct and independent conversion of each sum, but the converson of each sum as one transaction. 'On a trial of a charge of embezzlement, the fact that the money alleged to have been embezzled by the defendant was received in several sums at different times and from different persons, affords no ground for requiring the prosecutor to elect on which sum he will rely for conviction.' Gravatt v. The State, 25 Oh. St. 162. We do not think the court erred in this respect."

In the case of Adams v. People, 25 Colo. 532, 55 P. 806, 807, the defendant, clerk of the District Court, was convicted of embezzlement under a statute similar to ours and which, so far as pertinent here, contains the following provisions:

"If any officer entrusted by law to collect, disburse, receive or safely keep any money belonging to any county in the state shall fail or refuse to pay over all moneys which any such officer or person shall receive or shall collect when such officer or person shall be thereto required by law and demand duly made, if such demand be practicable, every such officer or person shall, on conviction thereof, be punished," etc. Mill's Ann. St. Colo. 1891, Sec. 1246.

In that case the contention was made that the distinct items of collections by the defendant from different sources and at different times and the failure to pay over these items as required by law, constituted distinct crimes. But the Supreme Court of the state, overruling this contention, said among other things as follows:

"The mere failure or neglect of the persons or officers, in the circumstances specified, to pay into the county treasury moneys collected by them, constitutes the offense — whatever be its character — for which the punishment is inflicted, without regard to the question whether or not it has been appropriated or converted by them to their own use. The section does not purport to cover the case of an ordinary embezzlement, and provision is elsewhere made therefor, * * * but it is for his failure to pay into the treasury money collected by him, from whatever source, regardless of the number of distinct items composing it, that the penalty is provided. * * * The offense, under this section of the statute — whatever the same or similar acts may be under other statutes — consists in the failure, on proper demand, to turn over money of the county which the officer has collected. It makes no difference from what source, or from how many sources, the money is derived; for, when collected, whatever be the sum, large or small, the county becomes the general or special owner of it, and an indictment which charges the failure to pay it over may not be said to consist of more than one offense because the aggregate amount is made up of a number of jury fees or witness fees, or because part of it was collected by the clerk under each of the three different appointments under which he acted in the discharge of his official duties."

And the late case of State v. Berg, 200 Iowa 627, 204 N.W. 441, while not very clear, holds that when the evidence shows a failure to pay over money by an officer on demand, the charge of embezzlement may be for the total amount unpaid and that in such case no election is required.

2. Counsel for the defendant, however, contend that several demands have been shown in this case, if any, and that, accordingly, there were at least as many crimes as there were failures and refusals to comply with such several demands. This point, however, was not made in the court below, and cannot accordingly be made in this court. Aside from that, however, we think the objection is technical. When a demand is made, a reasonable time to comply therewith must of course be given. We do not think that the county authorities should be compelled to determine at their peril as to when such reasonable time has elapsed, and when they see fit to make several demands, as in the case at bar, the last including a demand for the payment of all of the money due from an officer, all of the various demands made may well be treated as one continuous transaction.

3. While, as stated before, counsel for the defendant contend that no demand was necessary in this case, they alternatively seem to contend that none was made. They claim that all proceedings of the board of county commissioners must be shown upon its records; that in this case the records of the board of county commissioners of Albany County do not show that it asked the county clerk to make any demands on the defendant and that consequently those made by the county clerk were not legal. No authorities on that point, however, have been cited, and we do not consider the contention well taken. Moreover, demand was also made by the county treasurer, and in view of the fact that the money must be paid to him, the demand contemplated by the statute may, we think, be made either by him or by the board of county commissioners. It need not be strictly formal, and we think the demands made in this case were sufficient. State v. Bancroft, 22 Kans. 170.

4. Error is assigned because the court refused to admit in evidence certain checks which the defendant had left in an envelope in his office after he had resigned and which were taken possession of by the county treasurer. Some of them were thereafter cashed and some of them were not. Many were made in 1927. The county treasurer, who alone testified in regard to them, had no knowledge as to what these checks represented or in what capacity they were received by the defendant. It is insisted that these checks should have been admitted to contradict other testimony in the case tending to show the defendant's insolvency. However that may be, everything that could have been shown by the checks was shown by other testimony that was admitted. The checks amounted to the sum of $610.80; the total cash realized on them was $330.35. All of this was fully shown not only on direct examination by the state but also on cross-examination by the defendant. No question was raised as to these facts and the jury could not, by merely seeing the checks, have received fuller information than they already had. Moreover, the fact that the defendant had $600 or thereabouts, had no tendency whatever to show that he was solvent at the time of the charged embezzlement, unless other evidence had been offered showing that he had other and additional cash on hand, sufficient to meet the amount due from him to the county. But no other testimony of that character was offered and we think, accordingly, that under the circumstances, if the court committed any error, it was error without prejudice.

5. It is also contended that there is no evidence to show that the defendant received the money which he is alleged to have embezzled, but we think counsel is mistaken in that. Defendant in his reports certified that the amounts stated therein correctly represented the earnings of his office, or of money collected by him. These reports were competent evidence in the case. State v. Ring, 29 Minn. 78, 11 N.W. 233; McBride v. U.S., (C.C.A.) 101 Fed. 821. Defendant gave checks to the county treasurer for these amounts thus reported, without claim that he did not owe these sums. Section 1160, supra, states that all fees prescribed by statute shall be collected by the clerk of the District Court in advance and we must presume that he did his duty in this respect. And we think, accordingly, that the facts shown in the case at bar made at least a prima facie case that the defendant had actually collected the amount which he reported and for which he gave the checks as above stated.

We find no prejudicial error in the record and the judgment of the trial court must accordingly be affirmed. It is so ordered.

Affirmed.

KIMBALL and RINER, JJ., concur.

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STATE v. CAMPBELL
(Nov 19, 1930)