The Hawaiian gazette., 1904-10-07


unanimous pne.
The decision is IN part "a follows.
I'VE car not couccdo the validity ~
the defendants contention based on
the claim that his employment az
chief clerk ~ the Department Of Public
Works and " the market was not au-
thorlzed by law, and that no law au-
thorized the entrustlng him with TINS
public money IN question. The evil
deuce shows that Mt the time OF his
alleged eiubezzlement he was employ
cd In the alleged capacity, receiving
his appointment from the superintend-
ent. the legislature having made an
appropriation for salary of chief clerk
and clerk of the market. In It's APP
preparations for the Department or
Public Works.
THE case above cited sustains our
view that IL was not requisite that III
order 10 charge the defendant as
clerk or 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-
ton 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
| flee is equivalent to appointing him to
| 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.
''rhe evidence justifies 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 vir-
tue of that employment and in no other
capacity had possession by the consent
or authority of the Territory of the
sum of $3,2s95S belonging to the Terri
tory, being money received by him on
pany, Limited. drawn on the Bank of
Hawaii in favor of the Department of
Public Works, which check he that day
cashed. That on September 9, 1902, at
the Office of the Superintendent of Pub
lie Works, in the presence of Attorney
General f. p. Dole, High Sheriff Brown,
Acting Superintendent and Treasurer
William II. 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
S5252.10 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,54163, 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 VIII 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 S3,2S9.5S 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
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
embezzlement as defined by the statute.
II is true tnat 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
not to be inferred from his having re-
ceived the money and failed to pay II |!
over to the Territorial treasurer; but |
the case shows more than mere short |
age of accounts; 1t 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 II or placing it |
In some place which he declined when
requested To mention, In not paying II
into the treasury from the date OF It's
receipts by him on August 10 until
September or at all nor keeping Il In
the Official safe IN which It was usual
10 deposit such money. Not only the
defendant did not account for the
money when required 10 do so, or pay
u 10 the person thereto entitled, name
49, the Treasurer, but after admitting
It's receipt when asked what he had
done with H. he would not any The