LEE W. DRAKE, Appellant,
STATE OF ARIZONA, Respondent
APPEAL from a judgment of the Superior Court of the County of Yuma. Henry C. Kelly, Judge. Judgment affirmed.
Messrs. Windes & Clark and Mr. Raymond N. Campbell, for Appellant.
Mr. Joe Conway, Attorney General, and Mr. Albert M. Garcia, Assistant Attorney General, for the State.
[53 Ariz. 94] ROSS, C.J.
Lee W. Drake was convicted of embezzling $13.17, the property of the state, and he has appealed.
The charging part of the information reads as follows:
"The said Lee W. Drake on or about the 13th day of April, 1937, and before the
filing of this information, at, and in the County of Yuma, State of Arizona, was then a public officer, to-wit; a duly appointed, qualified and acting agent of the State Tax Commission of Arizona, which said commission was duly created and then and there existing under and by virtue of the laws of the State of Arizona, among other things, for the purpose of collecting the privilege sales tax by and through its commissioners and agents, and then and there by virtue of his said appointment and his said office and trust as such agent as aforesaid of the State Tax Commission of Arizona, there came into the possession of the said Lee W. Drake and under his control from one Cirilo Salas for and as a privilege sales tax, $13.17, lawful money of the United States and the personal property and public funds of the State of Arizona, and while said money and personal [53 Ariz. 95] property was so in his possession and under his control by virtue of his said appointment and his said office and trust as such agent, as aforesaid, of said State Tax Commission of Arizona, he, the said Lee W. Drake, then and there, to-wit; on the said 13th day of April, 1937, at and in the said County of Yuma, State of Arizona, did wilfully, unlawfully, feloniously, and fraudulently, appropriate the said money and personal property to his own use, not in the due and lawful execution of his said trust as such agent, as aforesaid of the said State Tax Commission."
The essential facts to a consideration of the points raised are as follows:
The Excise Revenue Act of 1935 (Chapter 77), which is generally known as the Privilege Sales Tax Law, imposes the duty of collecting the tax from taxpayer upon the State Tax Commission, and authorizes the commission to appoint agents (and other employees) to act for and under it in the performance of its duties in that respect (sec. 24, art. 2). Such agents may examine any books, papers, records, or other data bearing upon the correctness of any taxpayer's return or for the purpose of making a return where none has been made, as required by the act (sec. 25, art. 2). The commission appointed defendant one of its field agents with authority to collect and receipt for taxes and as such agent, on or about April 13, 1937, defendant waited upon Cirilo Salas, who had a small mercantile business in Yuma county. At the time Salas was in arrears for taxes for October, November and December, 1936, and January and February, 1937. The defendant examined Salas' books and invoices and such other data as were available, and made out, or assisted in the making of, two statements for the taxpayer Salas to sign and verify. One of such statements was for the period from October 1, 1936 to and including February 28, 1937, and showed that Salas owed the state in taxes $9.97 and penalties [53 Ariz. 96] thereon in the sum of $1.99. The other statement was for the month of March, 1937, and showed that Salas owed the state for that month taxes in the sum of $1.87, or all told that he owed the state $13.83. Both these statements were signed by Salas and verified before the defendant, who was authorized by the act to administer oaths (sec. 25). The defendant then informed Salas that he owed the state forty-odd dollars. Salas had only $27 in cash and this sum he gave to defendant. He thought the excess over $13.83 was a fine for delinquency. The defendant thereafter transmitted to the State Tax Commission the two statements above described and the sum of $13.83 to cover the taxes and penalties owed the state up to April 1, 1937, but did not account for the sum of $13.17, the balance of the $27.
Over the objection of defendant, the state was permitted to introduce evidence of other acts of a very similar nature committed by defendant in the same community and about the same time. It appears he would exhibit his official badge to a taxpayer, ask for his books and records, examine them and advise the taxpayer he was behind in his taxes. He would demand that the taxpayer give him a certain sum in cash and would not accept a check. Two such merchants who gave him money were Chinese and one a Mexican, who apparently were made to believe they would be closed out or fined. A Mr. Joe Ruby under some such apprehension gave him $50 cash, and a few days later $25 for a book to keep his accounts and instructions as to how to keep them.
Upon the facts as above set forth, the jury found defendant guilty. He contends, however, that such facts, if admitted to be true, fail to show that he is guilty of embezzlement. He argues that though it be conceded that he collected from Salas $27 when the latter owed the state only $13.83, and that he [53 Ariz. 97] appropriated ...