The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1904-10-05

/ 4 last. The decision today was a
| unanimous one.
/ The decision is in part as follows:
| 1--WE can not concede the validity Of
| the defendants contention based on
the claim that his employment as
chief clerk of the Department of Public
Works and of the market was not au-
| thorized by law, and that no law au-
thorized the entrusting him with ths
public money in question. The evil
| dence shows that at the time of his
alleged embezzlement he was employ
| ed in the alleged capacity, receiving
his appointment from the saperintend-
ent, the legislature having made an
appropriation for salary of chief clerk
and clerk of the market, in it's ap-
preparations for the Department of
Public Works. >
THE case above cited sustains our
view that it was not requisite that in
order to charge the defendant as a
clerk other person employed in the
Department of Public Works., his Gus
tody of public money as such clerk
should be expressly authorized By stat
ute.
There is no requirement of statute
that the appointment to receive public
money shall be explicitly provided for
or authorized by statute. The use in
the section of the act above quoted of
the words by any law, regulation or
appointment implies that the regula-
tion or appointment is something dis
tinct from an appointment authorized
by statute. The evidence that the SUI
perintendent placed the defendant in
charge of the public money in the Of
IL aI61lf TO inc hi
do so.
THE defendants counsel strenuously
contended that the evidence does not
sustain or justify the verdict or show
that the defendant received the money
and fraudulently converted it to his
own use.
1.-The evidence justif1es findings as
follows: That on August 16, 1902 the
defendant, while employed as chief
clerk Of the Department of Public
Works and of the market, and by viz
tue of that employment and in no other
capacity had possession by the consent
or authority of the Territory of the
sum of s3.2S9.5S belonging to the Terri |
tory, being money received by him on
check of the Hawaiian Electric Com
pany, Limited, drawn on the Bank of
Public Works, which check he that day |
cashed. That on September 8, 1902 at |
the Office of the superintendent of Pub |
lie Works, in the presence of Attorney |
General E. P. Dole, High Sheriff Brown, |
Acting Superintendent and Treasurer |
William H Wright, Deputy Auditor |
Meyers, and Siemsen and Cook, clerks |
in the Department of Public Works, |
the defendant. being. requested to open |
the combination safe in the office, after |
trying to open it, said he had for got
ten the combination, ran to the tele- |
phone and rang up his attorney, Long, |
who soon after came, when the defend |
ant opened the safe, and also unlocked |
and opened the inner drawer of the safe |
containing money. The Deputy Auditor |
counted the money in the defendants |
presence and announced that there was
$5,252.10 short in the accounts of the |
Public Works office; that at that time |
the check above mentioned was shown |
to the Deputy Auditor and then to the |
defendant, who asked the Deputy Audi |
tor what it all amounted to, and be- /
ing told that it was $S,541.63, and ask |
ed whether it was right said that is |
about it. The defendant then said he |
would give his check for that amount |
Dole asked him Will the check be
paid?' He said he would require four
days to raise the amount, and request
ed that the matter be kept quiet. To
the question asked by the Attorney
General, And what did you do with
the money! the defendant upon the
instruction of his attorney, made no
answer.
The defendants receipt of the said
sum of So, 2S9.53 in his capacity as chief
clerk of the Department of Public
Works, which was receipted for by him
as chief clerk, his failure when called
upon to do so to- account for that
money, his offer to give his check for
that money, and for other public money
admitted by him as part of the short
age in the accounts of the Public
Works office, his failure, when asked,
to say what he had done with the
money, his concealment of the money
and his request that the matter be kept
quiet constitute in law the offense of
embezziement as defined by the statute.
1t is true that the defendants fraudu-
lent converting or disposing of this
money to his own use and benefit or to
the use and benefit of another than its
owner or the person thereto entitled is
3
ceived the money and failed to pay it
| over to the Territorial treasurer; but
/ the case shows more than a mere short
age of accounts; it shows that the de-
PENDANT concealed the fact that he had
received this money, and also concealed
the money, the concealment consisting
in his either retaining it or placing it
in some place which he declined when
requested to mention, in not paying it
into the treasury from the date of its
receipts by him on August is until
September 9 or at all nor keeping it in
the official safe in which it was usual
to deposit such money. Not only the
defendant did not account for the
money when required to do SO, or pay
it to the person thereto entitled. name
| ~, the Treasurer, but after admitting
its receipt, when asked what he had
done with it, he would not say. The
money being traced to his possession,