448 DEAREN v. STATE. _ [177 DEAREN V. STATE. - Opinion delivered May 28, 1928. . E ilREZZLEMiENT—DEFENDANT'S AFFIDAVITS PRESENTING CLAIMS.— a prosecution for'embezzlement of county funds by the county clerk,.affidavits submitting claims against the county signed and sworn to by ' defendant held competent where they tended to show a connectien with the crime charged.. CRIMINAL L A ' VV—ADMISSIONS AS EVIDENCE.—Any admission of a defendant which tends to show his connection with the crime charged in the indictment is admissible against him. 3. CRIMINAL LAW—ADMISSIBILITY OF coins= RECORDS.—In a prosecution in which the county clerk is charged with embezzling public funds_of: the . county, the records of the county court, identified by an_ accountant who had examined them and by the . county clerk having custody of them, were properly admitted ever a gen-_eral abjection. • . , al. ' CRIMINAL LAW--"AUTHENTICITY OF RECORD.—In order to introduce any tecord, its authenticity and genuineness must be established, 'whether by evidence of witnesses, by evidence appearing on it,s face, orby showing the custody from which it came. 5. CRIMINAL LAW—IDENTIFICATION OF RECORD.—Whenever a public record is produced in court and identified by its custodian, no further proof of its authenticity is required as a general rule'. .6.,. E MBEZZLEMENT---VARIANCE BETWEEN INDICTMENT. AND' PROOF.— • ' 13 1:00f that defendant, charged with embezzling public funds of Sebastian County, embezzled funds of the Fort Smith District of such c6unty, held no variance, since such funds constituted county . funds-of S : ebastian County for the use of the Fort Smith District. .Appeal from Scott Circuit Court; J. O. Kincannon, 'Judge; affirrned. • George W . J011.42.3011,, for appellant. H. W. Applegate, Attorney General, and Dardew Moose, Assistant, for a.ppellee. MEHAFFY, J. The appellant, who was the county clerk of Sebastian County, was indicted, charged with the
ARK.] DEAREN V. STATE. 449 crime • of embezzlement of • public hinds of Sebastian County. lie was granted a change of venue to Scott County, where 'he • was tried and convicted, and his punishment • fixed at iniprisonment in the penitentiary for a period of five yearS. Motion . for new trial was filed and overruled, exceptions saved, and appellant prosecutes this appeal to reverse the judgment. Appellant'S first contention . is that the court erred in admitting certain teStimony. Mrs. Pettigrew, a witness, was asked this question : ."14. I hand you an affidavit to an account for $435 purported - to be signed by Wm. J. Dearen on the 12th day of October, 1925, and I will ask you if you recognize that.. account?" ,. She answered : "I do not know whether I recognize the account, but I recognize the signature. Q. Whose signature is that? A. Mr. Dearen's." The prosecuting attorney here asked to introduce the affidavit in evidence, and the attorney for appellant objected on the ground that it purported to be an original claina, and that it doe ' s not show that it has ever been filed in the county clerk's office, and that it is inadmissible in evidence in any other court except the county court of Sebastian County, Fort • Smith District, and further objects because it does not tend to 'show the defendant guilty of the offense charged. The paper introduced was as follows: "Affidavit of connty account, county of Sebastian, Fort Smith District: To Wm. J. Dearen Dr. To 498 claims v.. county 423.50 Insanity matters, 5 at $1.65 8.25 431.75 "State of Arkansas, county of Sebastian, Fort Smith District. "I, ,'do solemnly swear that the foregoing claim is just and correct, and that no part thereof has.been paid previously, that the service charged for or
450 DEAREN v. STATE. [177 material furnished, as the case may ibe, were actually rendered or furnished, and that the charge made therefor does not exceed the' amount allowed •by law, or customary charges, f6r similar services or material furnished, When estimated and paid in lawful money of the United States, and that such accounts, claims, demands of fee bill are not enlarged, enhanced or otherwise made greater in consequence of or by reason of any estimated, supposed or real depreciation in the value of county warrants. Wm.- J. Dearen. "Sworn to and subscribed before me this 1.2th day of August, 1925. Wm. J. Dearen, Clerk. By Leota C. Pettigrew, D. C. • "No. 499. $431.75. Claim for allowance : Co. Ct. Wm. J. Dearen v. 'Sebastian County, Fort Smith District. Filed on the day of 192 Clerk. By D. C. Examined a.nd allowed Aug. 10,
1.925. T ' . A. Norris, Judge." - Several other accounts and affidavits similar to the above were introduced, and objection was made to all of them. The aggregate amount was several hundred dollars, and the accountant, 'Gilbertson, also testified to a shortage Of something in excess of $4,000. It is earnestly insisted that these affidavits of the appellant were erroneously admitted in evidence. These affidavits were signed and sworn to by appellant, and they were therefore competent evidence if they tended to show his connection with the crime with which he was charged. It is always permissible to prove declarations and admissions against a person charged with an offense, if his declarations or adMissions tend in any wa.y to show his connection with the crime charged or tend to prove his guilt. "It is ing isted that error was committed in permitting witnesses to detail convetsations had with the defendant prior to the arrest of one and at the time of the arrest of the other, and subsequent to the robbefy, becanse they were indicted as accessories before the fact.
ARK.] DEAREN V. STATE. 451 But any admission of a defendant, whenever made, which tends to show his connection with the crime charged in the indictment, is admissible against him." Jenkins v. State, 131 Ark. 312, 198 (S. W. 877 ; Crawford v. State, 130 Ark. 101, 197 S. W. 19 ; Stroud v. State, 167 Ark. 502, 268 S. W. 850 ; Dennis v. State, 169 Ark. 505, 275 S. W. 739. Appellant contends, however, that this was an original claim, and inadmissible in evidence in any other court except the county court of Sebastian County. It is admissible because it is a declaration of the appellant himself, and would be competent - evidence in any court, whether it had ever been filed anywhere or whether it was intended to be filed. But it is said that it does not tend to show the defendant is guilty of the offense charged. This affidavit alone, of course, did not show him guilty of the offense charged, but all the evidence cannot be introduced at once. It is never possible to show by one statement or declaration all the elements of the crime. This evidence was admissible as tending to show the connection of the defendant with the crime charged, and it would make no difference, so far as the admissibility, of this statement is concerned, where the claim or statement or affidavit came from. - It is also contended that the records were improperly introduced. Appellant urges that the county court records were not properly identified as coming from the defendant's office. It is true that, at the time of the introduction of the records, the prosecuting attorney simply stated that they were the county court records of Sebastian County. The defendant objected, but did not state any specific objection, and witness Gilbertson, an accountant who had examined the county court records of the Fort Smith District of Sebastian County, identified the records sufficiently to authorize their introduction, as there was no specific objection made to them. It was stated, when the records were introduced, that they were the records that were in the defendant's office, and made
452 DEAREN V. STATE: [177 by him. TMs is not disputed. The appellant simply. objected to their introduction. If there was any question or doubt about their admissibility because they were not the records kept by the appellant, he shmild have made this objection. It was stated, when the -records were •ffered, that they were the recOrds in the defendant's office, and made there by him. And this statement was not disputed, and ho objection was made by appellant because they were not the proper records, but just a general objection to their introductiOn. If the appellant had made the objection that the records were not thOse kept by Min, or not the records of the Fort Smith District of Sebastian County, or if there had beenany dispnte abont them being the records kept by him, it would have been necessary to show tbese facts or to identify the records by 'Other evidence. The purpose, however, of introducing the clerk whO keeps the records to identify theth iS necessary onlY to show that they are the county court recdrds kept by the proper officers, and We think the proof was- §ufficient in this case when the witness 'Gilbertson testified that he examined the records in t.he county clerk's office. The statement was made in appellant's presence that they were the records kept in his office' by him, and no suggestion that they were not in fact the records of the -county court of Sebastian County. It is true that, in , order to introduce any document or any record, it must .appear that it is what it purports to be. Its authenticity and genuineness must be established, whether by evidence of witnesses or evidence appearing on its face, or by showing the custody from which. it came. Appellant does. not dispute the custody from which this record came, and does not dispute its correctness. Whenever a record is produced in conrt and identified by the custodian thereof, no further proof of its authenticity is required, as a general rule. Appellant himself, however, was the custodian in this case, and the identity of the record may be shown by any competent witness who knows the fact. The state-
ARK.] DEAREN V. STATE: 4-5 3 ment of the prosecuting attorney to the court was that these were the records-kept by.the defendant in his office. They are the same records testified about by the witness Gilbertson. Moreover, •witneSs Earl Dawson testified that he was county clerk of Sebastian County, and had charge and cuStody of the records of the Fort Sinith District pertaining to the office of county clerk, and had in his care records K and L, and also the records of the scrip register of Sebastian County, and, referring, to the records, witness was asked : "Those are the records that Were in the office at that time?" The witness ansWered that they were, and that they Were the records Used by him since that time as the redords.of the' county. He also teStified to having in his possession certain pistol registration applications, and testified that he also had the fee-book E of the Fort Smith District of Sebastian County, and the county court docket and scrip stubs. We therefore think that the records were sufficiently' identified to'authorize their. introduction in evidence. . The appellant also . contends . that it was not proper to take the accounts filed against the county and the records to Scott County and introduce them in eVidence, and that it was not shown that the accounts were filed in • any court or in any office. We hive already stated that the affidavits and accounts signed by .the appellant were properly introduced in evidence as statements made by him, and we think there was no error imadmitting . the other documentary evidence. It is next contended by the appellant that the case should be reversed because the funds which it is-charged • that appellant embezzled were the funds of the Fort Smith District of Sebastian County, and not of Sebastian County. The defendant is charged with embezzling public funds of Sebastian County, and we think the proof is not at variance with the charge in the indictment. - They were county funds, notwithstanding they might be for
454 . DEAREN V. STATE. [177 use in the Fort Smith District unly: 'Chandler, who was for six years treasurer of Sebastian County, -testified that, Under the salary law based upon a fee System, the surplus fees earned Iby them over the salary were diVided between the two :districts in proportiOn to the fees earned in the resPective districts. They: were countY funds, but divided in proportion to the fees earned in the:respective districts. Appellant calls attention to the case of Jewett v. Narris 170 Ark. 71,. 278 S. W. 652, and the court in that case said: . - "It: may be conceded that these districts are not counties within the ordinary meaning - of the word; but we think, in view of the unique proYision of the -Constitution in, regard to Sebastian -County, that the tWo districts thereof are to . be treated as if they : were in fact separate Counties, so far as their fiscal affairs are concerned.". They -are treated as if they were separate counties so far as their fiscal affairs were concerned, -but thiS dOes not make them separate counties, and it in no. way prevents the taxes collected in the county from being county taxes, although each district is apportioned its share of said county taxes. They are still county funds, just as the officers are county officers. The indictment complies with the requirements of the law, because it is direct and certain as to the -party charged, the offense charged, the county in which , the . offense was committed, and the particulai circumstances of the offense charged. And the funds, as we have already said, which appellant is charged with ethbezzling, were the funds of Sebastian County, and the fact that Sebastian -County is divided into two districts is immaterial. Appellant also insists that the court erred in the instructions given and refused, but we think the instrUctions as . a whole correctly stated the law, and it would serve no useful purpose to set them out here. We find no reversible error, -and the judgment is therefore affirmed.
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