People v. Johnson

The defendant, who was the assessor of San Diego County, was charged with a violation of subdivision 6 of section 424 of the Penal Code, it being charged that he wilfully omitted to transfer to the county treasurer the sum of $356.40 which he had collected from various persons as taxes on personal property and when it was his duty, under the law, to transfer said money to the treasurer. He was tried by the court without a jury and, after being found guilty, his application for probation was granted. He gave notice of appeal from the judgment and also from an order denying his motion for a new trial. Because probation was granted no judgment was entered and the purported appeal from such judgment should be dismissed, although the case is before us on the appeal from the order denying a new trial. (People v. Von Eckartsberg, 133 Cal. App. 1 [ 23 Pac. (2d) 819 ].)

With one exception, which will hereafter be referred to, there is no dispute as to the facts in the transaction which led to the conviction of the appellant. On March 6, 1934, an agent for the receiver of a theatre paid to the appellant, as county assessor, $1,021.68 in payment of the tax on certain personal property in the theatre, in accordance with an assessment made by the appellant. This tax was paid under protest on the ground that an excessive valuation had been placed on the property. In making this assessment the regular form

It is appellant’s contention that the evidence is not sufficient to show that he authorized the making of this refund in the manner in which it was made, and in this connection appears the only conflict in the evidence. He testified that he did not authorize the cashier to make this refund by paying cash out of the till, that he had never instructed anyone in his office to make a refund by paying money out of the drawer except by way of making change, and that although he approved the reduction of this assessment his instruction was that the refund should be handled in accordance with “Refund Form No. 232”, which contemplated a submission of the matter to the board of supervisors under the provisions

The investigation report in this particular matter was introduced in evidence, which was a form regularly used for that purpose. This set forth the basis of the complaint and was handed to an investigator, one of the appellant’s deputies. On March 7,1934, this deputy entered his report on the form recommending a reduction of $6,000 in the amount of the

This investigation report, with the recommendation for a refund appearing thereon and with the approval by the appellant with the notation “Not necessary to go thru B of S”, was, in itself, sufficient to justify the trial court’s finding that the appellant had authorized the making of this refund to the taxpayer without the usual application to the board of supervisors. While the appellant says he meant that it was not necessary to have the matter referred to the board of supervisors as a board of equalization, a procedure provided for by the other sections of the Political Code, and that he merely intended to authorize the procedure indicated by refund form No. 232, the last mentioned form, which was attached to the investigation report, plainly showed on its face that it was to be used only in connection with making an application to the

While the appellant calls attention to other inferences that might be drawn, his written statement on the investigation report taken in connection with the other evidence is entirely sufficient to support the implied finding that the appellant authorized the making of this refund in the manner in which it was made.

It is further contended that the evidence is not sufficient to establish, on the part of the appellant, an intent to do wrong and that the statute placed this burden on the prosecution. It is argued that nothing here appears but a mistake in the manner of bookkeeping, with no loss to the county and no gain to the appellant; that no fraud on the part of the appellant appears; and that it was the intention of the legislature, in adopting the statute upon which this prosecution is based, to cover eases of actual misappropriation of public funds, but that the same was never intended to apply to such a harmless transaction as the one here in question. It is argued that since the legislature used the word “willfully” in subdivision 6 of section 424 of the Penal Code, it was necessary to prove that the appellant not only omitted to transfer the funds in question but that he did this with an evil intent to defraud the county or to gain something for himself. He relies on People v. Swiggy, 69 Cal. App. 574 [ 232 Pac. 174 ], People v. Okomoto, 26 Cal. App. 568 [ 147 Pac. 598 ], and People v. Von Tiedeman, 120 Cal. 128 [ 52 Pac. 155 , 158]. He also cites certain cases from federal courts, including Roberts v. United States, 126 Fed. 897 , where it is said that the word “wilfully” “as ordinarily used in the penal statutes, implied wicked purpose or perverse disposition, or, indeed, any evil or improper motive, intent, or feeling, or, to characterize an act done wantonly, ...” Even in that case the part just quoted is followed by “or one which a man of reasonable knowledge must know to be contrary to his duty.” In People v. Von Tiedeman, supra, the court said: “The word ‘wilfully’ implies ‘a purpose or willingness to commit the act.’ (Pen. Code, sec. 7) ‘To do a thing willfully is to do it by design, with set purpose’ (People v. Shel

“The statement in the Penal Code, section 7, subdivision 1, that the word ‘willfully,’ when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, includes, rather than excludes, the idea that the person doing the act was fully conscious of, or in other words, that he knew, what he was doing and all of the circumstances connected therewith which made the doing willful. The word ‘willfully’ alone, as thus used, does not imply an intent to violate law or to injure another; but when the word is used, as in this information, in connection with a specific statement showing a purpose to injure another, it implies a criminal intent, if the law makes the doing of that act with that purpose a criminal act.”

In People v. Swiggy, supra, the court said:

“The word ‘willfully’, as used in section 270, means a de-. liberate intention or a set purpose to omit to perform the' natural duty which the- section declares that an omission to perform shall be penalized. The word, when used in criminal statutes, has been said to be a stronger word than the word ‘intentionally’ in so far as the word may expose the intention or purpose in the mind of the defendant, and that ‘it means governed by the will; obstinate; perverse’.”

We are unable to read these cases as sustaining the interpretation which the appellant gives the statute in question, namely, that it is necessary in a ease of this kind to prove that the omission occurred with a wrongful intent on the part of the appellant to defraud the county. It is argued that the word “willfully” in this statute has no meaning unless given this interpretation. But section 7 of the Penal Code provides that this word when applied to the intent with which an act is done or omitted shall imply simply a purpose or willingness to commit the act or make the omission, and that it does not require any intent to violate law, injure another, or acquire any advantage. Even though it implies a criminal intent when used in connection with other words showing a purpose to injure another, no such words appear here. In this particular statute there is an obvious reason why the legislature intended that the wilful failure to turn over public funds should constitute an offense, regardless of what motives actuated the officer in so doing. To fail to turn over

But it does not follow that it was intended thereby to make it necessary to prove that a failure to transmit funds, when required by law, was done with the intent of defrauding the people or of embezzling the money. The matter of embezzling such funds is covered by other subdivisions of this section. From the very nature of the case it is necessary to surround the handling of such public funds with the greatest restrictions and safeguards. This is done by this statute and it is made a crime to wilfully omit to transfer such funds in accordance with the requirements of law. The charter of San Diego County required such funds to be transmitted to the county treasurer daily. In our opinion, this statute covers a case where an assessor intentionally and knowingly disobeys the law and it is not necessary to prove that in thus disregarding the law he also intended to defraud the public or to acquire financial gain for himself. To say the least, it is sufficient under that statute if the act is knowingly done in violation of the law and this sufficiently appears here. Knowledge and purpose to do wrong may appear from an intentional disregard of this statute as well as from an actual embezzlement or stealing of funds. It fully appears that the appellant was aware of the law, that he complied with it in many eases, that he failed to comply with it in other cases, and that he intended here to keep these funds which should have been transferred to the treasurer for the purpose of paying someone who he thought had a just claim against the county. He had no more authority to use tax money which he had collected for this purpose, than he would have had to use the same to pay any other bill or demand which he might personally think was justly owed by the

“It is a familiar rule, that to constitute crime there must be a union of act and intent; but our code provides that the word “wilfully”, when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.”

It is argued that he acted in good faith and “under color of the authority of law”. Assuming that color of authority of law might in some eases excuse the omission to transfer such funds nothing here appears which might bring the appellant within any such rule. There can be no question, under the evidence, that the appellant’s act in failing to deposit this money and in using it for another purpose was wilfully done, within the meaning of this statute.

Some contention is made by the appellant that the funds here in question were not public funds which the law required him to transmit to the county treasurer. In effect the argument is that the receiver for the theatre was entitled to the money returned and, therefore, the money was his and did not belong to the county. However, the appellant is not charged with the failure to transmit the money which was paid in by this taxpayer. That money had already been deposited with the county treasurer. The money used in making this refund was money which was subsequently paid in by other taxpayers in payment of taxes assessed upon their personal property. These funds belonged to the county and beyond question were public funds which the appellant was required by law to transfer to the treasurer.

It is further argued that the court erred in excluding from evidence a letter written to the appellant by the district attorney in June, 1931. This letter advised the appellant that he had a right to make any changes he deemed advisable on his assessment roll up to the time the rolls were turned over by him to the board of supervisors as a board of equalization. If it be assumed that the appellant, as assessor, was authorized to make such corrections as this in the assessment

The appellant complains of the harshness of this statute if so interpreted as to permit a conviction for its violation where no overt dishonesty or intent to defraud has been shown. In People v. Dillon, 199 Cal. 1 , the court said: “The wisdom of the legislature in requiring custodians of public moneys to hold them inviolate is both a protection to the public and to the officer as it tends to remove from him the temptations that beset those who have large sums of money in their possession free from immediate demands.” And further:

“The safekeeping of public moneys has, from the first, been safeguarded and hedged in by legislation most strict and severe in its exactitudes. It has continuously been the policy of the law that the custodians of public moneys or funds should hold and keep them inviolate and use or disburse them only in strict compliance with the law. ’ ’

Apparently, ample provision has been made in the law for the making of refunds to which a taxpayer is legally entitled. The decision in such matters has been placed with the board of supervisors and not with the assessor. To permit the various officers of the county to make such disposition of county funds in their hands as they desire would open the door to such possibilities of fraud as to fully justify laws which may seem harsh in an individual case.

The appeal from the judgment is dismissed and the order denying a new trial is affirmed.

Marks, J., and Jennings, J., concurred.