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Harris v. State

Supreme Court of Arizona

January 16, 1933

STATE, Respondent

APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Affirmed.

Mr. W. L. Barnum, Mr. Allan K. Perry and Mr. Frank J. Duffy, for Appellant.

Mr. K. Berry Peterson, Attorney General, Mr. J. R. McDougall, Assistant Attorney General, and Mr. Lloyd J. Andrews, County Attorney, for the State.


Page 1099

[41 Ariz. 312] ROSS, C. J.

The appellant, Charles W. Harris, was convicted in the superior court of Maricopa county of the crime of presenting to the state auditor and securing from her the allowance of a false and fraudulent claim against the state for the sum of $533.23. He has appealed from the sentence of conviction and presents as errors certain rulings of the court in the course of the trial, the principal one being the refusal, on his motion, to direct a verdict at the close of the state's case on the ground that there was no evidence of criminal intent on his part. We will take up and consider this contention first, and to do so it is necessary that we make a statement of the salient facts as disclosed by the evidence.

There is very little, if any, material conflict in the evidence. The claim was dated August 7, 1930, and was on the state's general fund for military supplies supposed to have been sold to the state by the Army and Navy Store, of Phoenix, for the use of the Arizona militia. The defendant was a member of the Arizona militia and had been for a great number of years. For seventeen years he had been assistant adjutant-general or adjutant-general of the state. Early in 1929 he was succeeded in that office by Joseph F. Pomeroy. During his long service he was United States property and disbursing officer and [41 Ariz. 313] continued as such until December, 1929, when this duty was taken from him. He was not, in the year 1930, in any way connected with the adjutant-general's office, except, perhaps, as a civil employee, which will be later explained. Early in August, 1930, he made out, with the consent and approval of his successor, Pomeroy, the claim in question and caused the same to be presented to and allowed by the state auditor. The claim was not made in his name, but in the name of the "Army and Navy Store," the trade name of a store in Phoenix owned by one C. O. Long and managed by his brother, J. W. Long. This claim purported to be signed and sworn to by "J. W. Long, Manager" before one "Edw. J. McNamee, Capt. A. N. G., Quartermaster." On the claim was an assignment to said McNamee signed "Army and Navy Store By J. W. Long." In this form the claim reached Adjutant-General Pomeroy, who approved it and presented it to the state auditor for allowance stating that it was genuine. The auditor drew a warrant in payment thereof, payable to McNamee, and turned it over to Pomeroy, who in turn gave it to the defendant. Defendant then indorsed on it McNamee's name and also his own and negotiated it to the First National Bank of Arizona, at Phoenix.

J. W. Long and C. O. Long both testified that they had not sold to the state, or any of its agents, the goods and merchandise listed in the claim; that they had not seen the claim; that they had not signed it or sworn to it, and had had nothing whatever to do with it. McNamee admitted his part in the transaction and said he did it at the request of the defendant. The defendant, as a witness in his own behalf, admitted that the demand was false, but claimed that he did certain work in 1930, at the request of the adjutant-general, Pomeroy, in drawing plans for buildings for a national guard camp, to be [41 Ariz. 314] located and constructed near Flagstaff, Arizona, and that the scheme or plan of presenting a false claim was adopted by him and the adjutant-general to secure payment for such services; that such scheme or plan was resorted to because the then Governor and the legislative examiner had both told Pomeroy that they would not approve a claim against the adjutant-general's operating expense account for such services, and because, if he were paid out of such fund, Lescher and Mahoney, architects, would want to be paid out of the fund, instead of waiting "a deficiency

Page 1100

bill for the work they done." Lescher and Mahoney were later given $1,866.09 by the legislature "for services rendered and moneys expended on behalf of the state as architects in connection with the building of the national guard camp near Flagstaff." Chapter 83, Laws 1931.

Defendant also justifies or excuses the method adopted to get the money from the state in this way: He claims that when, as property and disbursing officer of the United States, he was succeeded, he turned over to his successor an "excess" of goods, worth $1,870.98, and that he was getting back only $533.23 for it. The items charged in his false claim purported to be and to represent this "excess," which he says he gave to the state.

We think we have stated enough of the evidence to give a fair picture of the transaction and the part played in it by the defendant -- not as vivid and colorful as the record shows it, but merely the ugly slimy outlines.

In view of defendant's contention that no specific felonious intent was shown, we cite just one piece of evidence, a note written and mailed to McNamee by defendant. It was written from the adjutant-general's office and reads:

[41 Ariz. 315] "Dear Mickey: You don't know it but you signed that warrant when it came down. I had to have the money so I signed your name and if any one asks you why you signed ...

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