People v. Lester

HOUSER, P. J. —By the respective terms that were contained in each of forty counts of an indictment, defendant was accused, as a deputy license clerk of the city of Santa Monica, of the violation by him of the provisions of section 424 of the Penal Code, in that he did feloniously appropriate to his own use a specified sum of money which was public property, and that he “did wilfully omit to pay said sum . . . to the treasurer of the city of Santa Monica”, etc. He was convicted as to each of thirty-nine counts of the indictment. As to the remaining count,' the indictment was dismissed. It is from the ensuing judgments that were pronounced against defendant, as well as from an order by which his motion for a new trial was denied, that he has appealed to this court.

The first point that is presented by appellant as constituting a sufficient reason for reversal yof the judgment, in effect, is that the evidence which was adduced on the trial of the action was insufficient to support the judgment, in that it failed to legally establish the essential fact that defendant was a “duly and regularly appointed, qualified and acting deputy license clerk of the city of Santa Monica charged with the receipt, safekeeping and transfer of public moneys”; and, therefore, that he was not a public officer.

In that regard, included within the evidence were the following facts, to wit: Prom and after January 2, 1934, one Theodore D. Plumer was the duly elected, qualified and acting commissioner of finance of the city of Santa Monica. As such officer, he also was the ex-officio vice-president of the city council, city clerk, assessor, treasurer, city tax and license collector, general manager of the transportation department, and had charge of the collection of all license fees for the said city. By an ordinance of the city of Santa Monica, adopted June 22, 1923, the commissioner of finance, [453]as ex-officio city clerk, was authorized to appoint a deputy city clerk to act as license clerk and license collector;—in pursuance whereof, the said commissioner appointed defendant as such deputy city clerk for an indefinite term; whereupon defendant took the oath of office as deputy license clerk on said second day of January, 1934, and continued - in office until April 1, 1936. Each of the several counts of the indictment contains an allegation to the effect that it was during the term when defendant was so acting that he misappropriated the sum of money specified in said count. That in such circumstances defendant was a public officer, acting as such, in a capacity authorized by law, see Vaughn v. English, 8 Cal. 39, and Logan v. Shields, 190 Cal. 661 [214 Pac. 45], Furthermore, with reference to the sufficiency of the evidence, appellant admits that by competent evidence it was established that he received the several sums of money which, by the respective counts contained in the indictment, he was accused of having received. An examination of the record herein impels the conclusion that such fact, together with other evidence, not only of his failure to deliver those moneys to the treasurer of the city of Santa Monica, as provided by law, but as well, his written confession “that funds in excess of $2,000 has been received by me for the sale of dog licenses and other city pound receipts, funds of the city of Santa Monica”; and that “I have applied these funds to my own use . . . ”; established a sufficient support for the several verdicts that were returned by the jury and the ensuing judgments. It is clear that defendant was regularly appointed a public officer; that he not only qualified as such, but also that while in the pursuit of his duties of the office he collected and thereafter appropriated to his own use certain public moneys which came into his possession. At least, he was a de facto officer. It follows that, without giving force and effect to the extreme “legal technicalities” regarding the question of whether defendant was a public officer, which are urged by appellant, but which cannot be permitted to prevail as against the plain provisions of the charter and ordinances of the city of Santa Monica to which reference hereinbefore has been had, together with the remaining facts, as hereinbefore set forth, neither of appellant’s specifications of error regarding the sufficiency of the evidence can be sustained.