{ "id": 1453547, "name": "Collins v. State", "name_abbreviation": "Collins v. State", "decision_date": "1940-07-08", "docket_number": "4177", "first_page": "1027", "last_page": "1043", "citations": [ { "type": "official", "cite": "200 Ark. 1027" }, { "type": "parallel", "cite": "143 S.W.2d 1" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "84 S. W. 497", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "73 Ark. 399", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1504021 ], "opinion_index": 0, "case_paths": [ "/ark/73/0399-01" ] }, { "cite": "182 S. W. 906", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "122 Ark. 197", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1558180 ], "opinion_index": 0, "case_paths": [ "/ark/122/0197-01" ] }, { "cite": "9 S. W. 2d 236", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "177 Ark. 1031", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726236 ], "opinion_index": 0, "case_paths": [ "/ark/177/1031-01" ] }, { "cite": "1 S. W. 2d 23", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "175 Ark. 878", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1403594 ], "opinion_index": 0, "case_paths": [ "/ark/175/0878-01" ] }, { "cite": "275 S. W. 701", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "169 Ark. 359", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1374026 ], "opinion_index": 0, "case_paths": [ "/ark/169/0359-01" ] }, { "cite": "254 S. W. 683", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "160 Ark. 431", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723144 ], "opinion_index": 0, "case_paths": [ "/ark/160/0431-01" ] }, { "cite": "247 S. W. 768", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "156 Ark. 521", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1358508 ], "opinion_index": 0, "case_paths": [ "/ark/156/0521-01" ] }, { "cite": "198 S. W. 113", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "130 Ark. 457", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721530 ], "opinion_index": 0, "case_paths": [ "/ark/130/0457-01" ] }, { "cite": "197 S. W. 580", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "130 Ark. 358", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720381 ], "opinion_index": 0, "case_paths": [ "/ark/130/0358-01" ] }, { "cite": "130 Ark. 122", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718230 ], "pin_cites": [ { "page": "197" } ], "opinion_index": 0, "case_paths": [ "/ark/130/0122-01" ] }, { "cite": "98 S, W. 678", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "81 Ark. 25", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1530637 ], "opinion_index": 0, "case_paths": [ "/ark/81/0025-01" ] }, { "cite": "239 S. W. 27", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "152 Ark. 553", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1364104 ], "opinion_index": 0, "case_paths": [ "/ark/152/0553-01" ] }, { "cite": "24 S. W. 885", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "58 Ark. 353", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1329143 ], "opinion_index": 0, "case_paths": [ "/ark/58/0353-01" ] }, { "cite": "233 S. W. 673", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "149 Ark. 462", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720670 ], "opinion_index": 0, "case_paths": [ "/ark/149/0462-01" ] }, { "cite": "47 S. W. 2d 31", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "185 Ark. 379", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1435288 ], "opinion_index": 0, "case_paths": [ "/ark/185/0379-01" ] }, { "cite": "43 Ark. 91", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1894431 ], "opinion_index": 0, "case_paths": [ "/ark/43/0091-01" ] }, { "cite": "39 S. W. 709", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "63 Ark. 527", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724331 ], "opinion_index": 0, "case_paths": [ "/ark/63/0527-01" ] }, { "cite": "140 S. W. 2d 1008", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1453455 ], "opinion_index": 0, "case_paths": [ "/ark/200/0688-01" ] } ], "analysis": { "cardinality": 1219, "char_count": 28581, "ocr_confidence": 0.494, "pagerank": { "raw": 3.112456848442742e-07, "percentile": 0.8600877889019785 }, "sha256": "0950fb7715092f56529787944814e2ff97a1a6c6f4a18305d7ce3eded12b6769", "simhash": "1:83e47c636782cd1d", "word_count": 4848 }, "last_updated": "2023-07-14T18:22:40.186957+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Collins v. State." ], "opinions": [ { "text": "Grieein Smith, C. J.\nIn consequence of a shortage of $22,896.86 in the accounts of L. B. Branch, sheriff and collector for Pulaski county, appellant was indicted on five counts charging embezzlement of amounts aggregating $980.97. Upon conviction prison sentences of 21 years were assessed on each count \u2014 a total of 105 years. The judgment was that each sentence should be reduced to 15 years, and that they should run concurrently.\nTo reverse, 25 alleged errors are assigned. These have been grouped under the following headings:\n(1) The court erred in overruling the demurrer of defendant to the amendment to the indictment.\n(2) The court erred in denying the motion of defendant to require the state to elect (as to each count of the indictment) whether it sought to charge the defendant as \u201cchief deputy sheriff\u201d or \u201cdeputy collector.\u201d\n(3) The court erred in overruling the demurrer of defendant to the bill of particulars filed by the state in this cause.\n(4) The court erred in appointing, over the objection of defendant, members of the state police to serve at the trial, in lieu of the sheriff and his deputies, and in qualifying\u2019 said members in the absence of defendant.\n(5) The court erred in overruling the motions of defendant to disqualify the jury panels.\n(6) The court erred, after defendant had exhausted all of his peremptory challenges, and after the regular jury panel had been exhausted, and after eleven jurors had been selected by both sides, qualified and seated in the box, in permitting the state to exercise a peremptory challenge as to 0. C. Hester, one of the members of the jury so selected, qualified and seated, and in excusing said juror from service in the case.\n(7) The court erred in admitting evidence of alleged numerous separate and independent offenses, not connected in any manner with the specific offenses charged, and not set out in the bill of particulars, there being no general scheme or design alleged or claimed to which evidence of such alleged additional offenses could be addressed.\n(8) The court erred, during the course of the trial, in denying the request of counsel for the defendant that they have permission to use in the cross-examination of witness Joe Bond the audit or memoranda prepared by said witness and used by him in his direct examination to refresh his memory as to numerous items, and from which he testified.\n(9) The court erred i'n refusing to permit defendant to show by witness Bond, on his cross-examination, that he had made an audit of the bank account of the sheriff and collector, who was shown to have had access to the funds of the office, including the funds alleged to have been embezzled, and to have withdrawn certain of said funds in an irregular and illegal manner, and that such audit showed that after deducting his salary and the proceeds of his borrowings for 1937 and 1938, he deposited in his bank account approximately $37,000 during that period.\n(10) The court erred in overruling the separate requests of defendant, at the close of all the evidence, for directed verdicts as to each count of the indictment.\nFirst. \u2014 In each count of the indictment the defendant was charged with misappropriation of public funds in his capacity as \u201cacting deputy collector of Pulaski county.\u201d Prior to trial the prosecuting attorney, by leave of the court, amended by describing appellant as \u201cchief deputy sheriff.\u201d The amended indictment was demurred to on the ground that the substituted description of the defendant\u2019s official position did not relate to a matter of form, \u201c. . . -but was an affirmative charge in a matter of substance, which charge was in direct conflict with the charge made by the grand jury, and the state is without power or authority to amend the original indictment in such manner.\u201d The demurrer was overruled.\nIn urging his exceptions appellant says that under Amendment No. 21 to the' Constitution prosecutions may be by indictment or information; \u00a1but, it is insisted, Amendment No. 21 does not authorize \u00a1amendments to indictments, and at common law no such right existed. Authorities cited are shown in the footnote.\nAppellant concedes that Initiated Act No. 3 (Pope\u2019s Digest, \u00a7 3853), authorizes prosecuting attorneys, with leave of the court, to \u201c. . . amend an indictment as to matters of form or [to] file a bill of particulars.\u201d But the same section contains the restriction that \u201c. . . no indictment shall be amended, nor \u00a1bill' of particulars filed, so as to change the nature of the crime charged or the degree of the crime charged.\u201d\nSection 3836, Pope\u2019s Digest, (which is not a part of Initiated Act No. 3) reads as follows: \u201cNo indictment is insufficient nor can the trial, judgment or other proceedings thereon be affected by any defect which does not tend to the prejudice of the substantial rights \u00f3f the defendant on its merits.\u201d\nThe question presented \u00a1by the demurrer is whether the amendment to the indictment related to form, or whether it affected a matter of substance.\nThe nature of the crime charged to Collins \u2014 embezzlement \u2014 was not changed when the indictment was amended. The accused\u2019s capacity was re-described, but not to his prejudice. There was no variance between the indictment, as amended, and the proof, even though the defendant did, in part, embezzle money intended for the sheriff, and in part intended for the collector. The sheriff was ex officio collector. The accounts to which the misappropriated funds were apportionable were of no controlling importance in the instant case, each specific item having been traced to Collins, who officially received and personally retained the money. Baker v. State, ante p. 688, 140 S. W. 2d 1008.\nSecond. \u2014 What we have said in respect of the exceptions urged against amending the indictment disposes of the contention under this heading. The state filed a bill of particulars in which the defendant was informed of the range the testimony would take. The appellant admitted that he was custodian of moneys intended alike for the sheriff and for the collector.\nThird. \u2014 Counsel for appellant, in their brief, state that assignment No. 3 is merely a follow-up of exceptions taken to the amendment to the indictment.\nFourth. \u2014 Throughout the record runs the thread of suggestion, inferentially made, that the sheriff was not free from blame. Therefore, defendant\u2019s motion that the sheriff and the coroner and their deputies be disqualified as court attendants, was granted. Affirmatively, it was prayed that \u201c. . . special deputies, or commissioner or commissioners, a citizen and elector, or citizens and electors, of good repute, above suspicion, and without bias or interest in the outcome of this cause, be appointed or commissioned to summon the jurors in this cause, and to attend and wait upon the panel, to do whatsoever the law or necessity requires in the premises herein. \u2019 \u2019\nMembers of the state police were designated as special deputies. By \u00a7 3982 of Pope\u2019s Digest it is provided that \u201cThe court may, for sufficient cause, designate some other officer or person than the sheriff to summon jurors, the officer or person designated being first duly sworn in open court to discharge the duty faithfully and impartially.\u201d\nIn view of appellant\u2019s request for disqualification of the sheriff and coroner, we think the objection captious, and there is no showing of prejudice.\nFifth. \u2014 It was alleged in defendant\u2019s motion to quash the jury panel that the members had been selected and summoned by the sheriff, \u201cwho had an interest in the outcome of this case; that they' had, during the term of court, been in constant and almost daily association with the sheriff and his deputies, and that the members of the panel were not representative of the citizenship of Pulaski county, but twenty-three of the twenty-four members of the regular panel, and all twelve of the alternates resided in the city of Greater Little Rock.\u201d The motions were overruled.\nThere is complete absence of proof that selection of the regular panel and alternates was designedly confined to citizens of a particular locality; nor is there allegation that influence was exerted upon the veniremen, or that any of them was chosen because of interest in the result of the trial.\nPope\u2019s Digest, \u00a7 8314, provides that the jury commissioners \u201cshall . . . select from the electors of [the county in which the trial is conducted] such numbers as the court may direct.\u201d In summing up his objections under the fifth assignment, appellant says: \u201cAll in all, viewed against the whole background, the situation does not' look just exactly right. \u2019 \u2019\nSixth. \u2014 It is objected that after eleven jurors had been accepted by the court, by the state, and by the defendant, and had taken their seats in the jury box, and after the defendant had exhausted all of his challenges, C. C. Hester, one of the jurors who had been so accepted, said that \u201c. . . by marriage some way my wife and Mrs. Charles McNutt* \u2014 they are not related\u2014 have known each other for a long time. \u2019 \u2019 Hester said he did not think this circumstance would affect the outcome of the case or impair his judgment. The. court, however, excused him. The defendant saved his exceptions. The court offered to allow the defendant an extra challenge.\nWilliams v. State, 63 Ark. 527, 39 S. W. 709, is relied upon by appellant. The court said: \u201cWe have failed to find a case where the error complained of has been held not prejudicial, where jurors are yet to be selected, and the defendant has exhausted his challenges.\u201d In the case at bar the state proposed to permit the defendant to use one of its challenges on any venireman who should be examined as a substitute for Hester. The Williams Cuse seems to be predicated upon the court\u2019s inability to determine whether the defendant was prejudiced by discharge of jurymen in circumstances somewhat similar to those here discussed. It was then said that \u201c. . . we cannot say that it was not detrimental to him, and in- fact we are rather inclined to think it was.\u201d\nWe are unable to see how Collins could have been prejudiced by action of the court in excusing a juryman who said he would not be influenced by the fact of his wife\u2019s friendship for the defendant\u2019s official associate who was under indictment. The defendant had no absolute right to the services of any particular juror, and we are not willing to say that judicial discretion was abused.\nSeventh. \u2014 The contention under this heading is that the court erred in admitting evidence of similar offenses which were not set out in the bill of particulars. Palmer Taylor testified that two state warrants payable to the sheriff (items not specified in the indictment as originally returned, as amended, or in the bill of particulars) had been issued, -and Joe Bond, certified public accountant, testified these warrants were cashed by the defendant and the proceeds not accounted for. Counsel for Collins insisted such evidence was incompetent, irrelevant and immaterial; that it pertained to separate and independent offenses having no connection with the crimes charged; that no general scheme or design had been alleged, and that proof relating to such warrants would shed no light upon the subject-matter of inquiry.\nIf, as appellant insists, these transactions were unrelated to the offense of embezzlement, and there was want of proof that the defendant\u2019s conduct was continuous and that no systematic plan of appropriating public funds existed, the objections would be tenable. The evidence destroys the basis upon which the claim of privilege from inquiry is asserted.\nEighth. \u2014 Did the court err in denying appellant\u2019s request for permission to use, in the cross-examination of Joe Bond, \u201cthe audit or memoranda prepared by said witness and used by him in his direct examination to refresh his memory?\u201d\nAppellant has not abstracted his motion for a new trial. By reference to the record it will be seen that the fourth assignment is that the court erred \u201cin denying the motion of defendant for permission to inspect the audit and summary of Joe Bond prior to the trial.\u201d Apparently this assignment has been abandoned on the theory that what occurred before the grand jury was not an issue to which exceptions could be taken if the indictment alleged an offense within the jurisdiction of the court.\nTwo audits were before the grand jury: one prepared under the supervision of J. Bryan Sims, chief county accountant of the state auditorial department, whose excellent work over a period of more than twenty years has reflected great credit upon his intelligence, industry and fidelity; the other (and more recent) prepared by Joe B. Bond.\nCharles E. Batcliff, Jr., of the state auditorial department, testified that a report filed by the comptroller\u2019s office disclosed a shortage of $22,896.86 for 1937 and 1938. He stated that no effort was made to ascertain personal responsibility \u201cso far as the individual was concerned.\u201d\nThe record reflects that Joe Bond, a certified public accountant of known trustworthiness and fine ability, was employed to make an \u201cinternal\u201d examination,covering the sheriff\u2019s own records. Mr. Bond stated that the results shown by his audit, and the shortage charged to the sheriff and collector by Mr. Sims\u2019 audit, were virtually the same. There was a stipulation that records from the sheriff and collector\u2019s office should be considered in evidence, but not introduced. However, numerous original records appear in the bill of exceptions.\nAs described by Bond, taxes were collected by deputies in the \u201cfront office\u201d of the collector\u2019s suite of offices. These deputies, or receiving tellers, made daily reports which were balanced with their collections. Chief Deputy Collector Weir kept keys to the various machines used in recording receipts, and was the only employee who knew the total amounts registered. He checked all collections against reports of the tellers, and each teller filed with the \u201cback office\u201d a copy of his report, and transmitted the money collected. Appellant and Charles McNutt were the only two deputies in the so-called \u201cback office,\u201d and all moneys received from the tellers were supposed to be delivered to them. Copies of the tellers \u2019 daily reports were furnished a distribution clerk in the front office, who took the totals and prepared a distribution sheet showing how apportionments were to be made. This distribution sheet was filed with Collins and McNutt. All books and permanent records \u2014 including evidences of bank deposits, etc. \u2014 were kept in the back office by appellant or McNutt.\nOther than receipts by the collector on account of tax payments, emoluments accruing to the sheriff\u2019s office were handled from day to day by a process deputy. His report was similar to that of the collector\u2019s tellers, and it, together with receipts, was delivered to appellant and McNutt. During 1937 and 1938 $4,938,913.84 was collected, all of which, except $485.41, was received by the back office.\nThe first count of the indictment charges appellant with withdrawal of $100 in currency from the collections of J. H. Belford, a receiving teller, and an unexplained deposit by appellant the same day. Belford\u2019s original settlement sheet for April 13, 1937, showed that during the day he collected checks aggregating $4,926.77; currency amounting to $373; silver amounting to $1.85, and that he charged \u201ctickets\u201d with $100 \u2014 a total of $5,401.62. The original report is in evidence as Exhibit \u201c C. \u201d Appellant\u2019s personal bank statement for April 13 shows that he took credit for $100. The bank\u2019s deposit slip evidencing this credit shows that currency was handled. A summary of the tellers \u2019 settlements for April 13, made by McNutt, shows that the item of $100 listed as \u201cticket\u201d was withheld from a deposit of the day\u2019s collections, and that the deficiency was charged to a cash account. The summaries made by McNutt were entered in the cash journals, showing day-to-day deposits, and revealing the amounts withheld and charged to cash. The difficulty was that when the audit was made the cash was not on hand.\nMr. Bond testified that three men, and three only \u2014Sheriff 'Branch, appellant Collins, and Charles Mc-Nutt \u2014 had access to the money after it had been accounted for by the tellers.\nThe second count of the indictment alleges that August 24, 1937, appellant withdrew $25 from the collections of David McLees, teller. It was accounted for in a manner similar to that described in respect of count No. 1.\nThe third count charges embezzlement of warrant No. 264254, dated July 5, 1938, for $160. This warrant was on a voucher issued by the clerk of the Supreme Court in payment of services due for deputy sheriff attendance upon the court. It bore appellant\u2019s indorsement and was cashed by appellant at the Peoples National Bank. Bond\u2019s testimony is to the effect that the money was never deposited to the sheriff\u2019s emoluments account and there was no evidence that it was otherwise received.\nThe fourth count alleges embezzlement of $658.65, representing parts of fines paid by a deputy circuit clerk. Appellant admitted receipt of the money. Bond\u2019s testimony was: \u201cThis amount of money was never entered on the books, never reported to the process deputy, and never deposited in tbe bank \u2014 and, of course, not accounted for when tbe audit was made.\u201d\nTbe fifth count cbarg\u2019es embezzlement of $37.32. L. G. Becoulet paid this amount to appellant in settlement of his taxes. No official receipt was issued, nor were tbe taxes marked paid. Tbe money was not accounted for.\nAppellant\u2019s testimony was a general denial that be intentionally took any of the public fund.\nTbe evidence was sufficient to sustain conviction.\nTbe most serious objection is that appellant was denied access to memoranda from which- Accountant Bond testified. Tbe so-called \u201cinternal\u201d audit made by Bond was requested by tbe grand jury, and its cost \u2014$1,500\u2014was paid by the county and charged to tbe prosecuting attorney\u2019s contingent fund. During1 direct examination of tbe accountant, counsel for appellant asked what the witness was testifying from. Tbe reply was, \u201cInformation taken from tbe reports.\u201d Tbe record discloses tbe following questions and answers: \u201cQ. You are not testifying from tbe reports? A. I can if you wish me to, I have them here. Q. I will ask you if you are testifying now from a summary you yourself made from tbe original records? A. From an analysis I made myself. Q. And you have that compiled in one volume? A. Yes, sir.\u201d\nMr. Mehaffy (prosecuting attorney): \u201cQ. You are using that as a basis for your testimony, refreshing-your memory? A. I have refreshed my memory. Q. Do you have in tbe court room tbe original records?\u201d\nMr. Coulter (of counsel for appellant): \u201cI am not raising that question with that information.\u201d\nLater, during tbe course of tbe direct examination of witness Bond, tbe following took place:\nThe court: \u201cMr. Coulter says it is agreeable with him for tbe witness to use his summary. You may give him a list of tbe dates and be can go over each one without tbe questions being asked.\u201d\nMr. Mehaffy: \u201cQ. Gro ahead without my asking question?\u201d\nMr. Coulter: \u201cNow, Mr. Bond, mark those on the records so that I can keep up with them when I cross-examine you.\u201d\nMr. Mehaffy: \u201cThat record \u2014 \u25a0\u201d\nMr. Coulter: \u201cYes, sir, mark them with a lead pencil so I can keep up with them when I cross-examine you.\u201d\nMr. Mehaffy: \u201cIf the court please \u2014 \u25a0\u201d\nThe court: \u201cThere is no use in bringing up that question now.\u201d\nMr. Coulter: \u201cI will stipulate he may use the summary before him.\u201d\nDuring the course of the cross-examination of witness Bond by counsel for the defense, the following took place:\nMr. Coulter: \u201cQ. I believe you stated on your direct examination that you had made an audit of the affairs of the office of sheriff and collector of Pulaski county covering these particular years, which audit you termed an internal audit of the affairs of this office? A. Yes, sir, that was a term to more' exactly describe it. Q. The purpose of that audit was to determine insofar as it was possible to do so where the shortage of some $20,000 went? A. Yes, sir. Q. /When did you begin work on that audit, Mr. 'Bond? A. Sometime in July, I believe, I wouldn\u2019t be sure about that. Q. Of 1939? A. Yes, sir. Q. How long did you continue in that work before you completed your audit? A. About seventy days. Q. Do you remember when that audit was completed? A. Not exactly, I do not; approximately three months after I began the work. Q. Did you compile a summary of your findings as a result of that audit? A. Yes, sir. Q. Have you had that summary in your hand on the witness stand, and have you been using it by way of refreshing your memory in referring to the other books and records and testifying in this cause? A. Yes, sir. Q. You didn\u2019t file a copy of that audit in your testimony before tbe grand jury? A. Yes, sir. Q. You mean you filed a complete copy of tbe audit? A. Yes, sir. Q. Now you have a copy of it in your hand on the witness stand? A. Eight. Q. That is the document to which you have made repeated reference in your testimony by way of refreshing your testimony? A. Yes, sir. Q. Might I, by way of refreshing my memory and keeping up with your testimony of this morning, see the summary you have on the desk there?\u201d\nMr. Mehaffy: \u201cWhat is the question?\u201d\nMr. Coulter: \u201cI asked if I might, by way of following his testimony of this morning and refreshing my memory the way he has been refreshing\u2019 his, have access to the summary he used.\u201d\nMr. Mehaffy: \u201cI object, Mr. Coulter, of course, knows that is grand jury testimony and not admissible.\u201d\nFollowing Prosecuting Attorney Mehaffy\u2019s objection a hearing was conducted in chambers. The court ruled that the defendant did not have a right to examine the audit summary.\nWas this error?\nThe questions and answers (which for clarity have been copied at length) show that the original records were available, and that counsel for appellant consented that the analysis or summary might be used in order to expediate the examination. For example, after Bond had stated, \u201cI have refreshed my memory,\u201d and had told Mr. Coulter the original records were available, the attorney stated, \u201cI am not raising that question with that information.\u201d\nClearly, Mr. Coulter meant by this declaration that after being informed the primary evidence was at hand, he would not question Bond\u2019s right to refresh his memory from the audit summary. Again, Mr. Coulter said: \u201cI will stipulate he may use the summary before him.\u201d\nOn cross-examination, after waiving any objection to Bond\u2019s reference to the memoranda, there was an effort to raise the issue again. It was then too late. Having conceded that the summary might be used by the witness, and having failed to attach as a condition to the concession a requirement that he be permitted to examine the document during cross-examination, the court\u2019s action in refusing appellant\u2019s demand, coming at the time it did, was not prejudicial.\nNinth. \u2014 The witness Bond was asked: \u2014 \u201cTaking into consideration Mr. Branch\u2019s bank account and the money found there, I will ask you whether or not, after allowing credit for his salary and for all other incomes which you could trace, if there was a difference left there between that amount and the amount he put in the bank? A. I had no knowledge of any income Mr. Branch had outside of his salary. I understand he was in the farming business, and rented, too. His deposits considerably exceeded his salary as sheriff for the two years. Q. Would you mind stating to the best of your recollection what the deposits were? A. Just a guess, after excluding deposits that arose from notes, and deposits that arose from salary, I think he possibly had $37,000 that was in cash.\u201d\nThis answer, as abstracted by the state (brief page 37), reads: \u201c. . . I can possibly say he had $37,000 that was not in cash.\u201d [Italics supplied.]\nThe substitution was, presumably, inadvertent. However, as affecting the case at bar, the discrepancy is unimportant. The defendant\u2019s object in demanding access to the audit was to show that persons other than himself had access to moneys received for the public account.\nWhile we think it would have been better to permit appellant to inspect the audit, no error is shown. Appellant was convicted upon specific counts alleging definite transactions, each of which was traced in a convincing manner. Testimony as to the system observed in the sheriff and collector\u2019s office was merely incidental to the identified acts of embezzlement. Bond testified, without objections, that Branch had access to the funds. This information was not denied the jury. That the jury might have believed that money traced to appellant was taken by Branch is not availing in the light of Bond\u2019s' testimony in chambers that he did not know the sources -of the sheriff\u2019s income.\nIrrespective of the trial court\u2019s belief that the Bond audit was confidential to the grand jury, it is a public document, paid for with public funds, and available to any citizen for inspection at any reasonable time in the office of the circuit clerk, who is hereby directed to treat it as .any other public record.\nIt is true, as we said in State v. Fox, that the grand jury is an inquisitorial body, the proceedings of which are intended to be kept secret, and cannot be examined and reviewed by a trial court upon a motion to set aside or quash an indictment, except for cause specified by the statute. Every member of a grand jury must keep secret whatever may have been said by any of its members, and also must treat as confidential the manner in which the members have voted. A grand juror may not be questioned about anything he has said or any vote he may have cast, save for a perjury he may have committed in making accusation or giving testimony before his fellow jurors.\nThese statutory mandates, as construed by the decisions, supra, are for the protection of the grand jurors and in furtherance of orderly administration of our criminal laws. They serve, also, to shield the innocent who may be witnessed against in circumstances where an indictment or presentment fails.\nConversely, the public\u2019s right of access to an audit relating to the collection and disposal of nearly five million tax dollars \u2014 an audit for which fifteen hundred dollars of county money was judiciously spent \u2014 cannot, under any statute or rule of construction, be questioned. All of the information contained in the report is taken from records authorized to be kept for official purposes, or from entries made elsewhere at the instance of those entrusted with prescribed duties who violated the confidence imposed in them. To hold that when such information has been gathered, explained so convincingly that indictments for embezzlement are predicated upon its accuracy, and thereafter convictions are had \u2014 to say that the general welfare is best served by consigning to oblivion the details so painstakingly portrayed by a highly trained and sincere accountant, is to lose sight of the paramount interest so inconspicuously represented by the humble taxpayer. This is not, and never was, the purpose of the law.\nThe judgment is affirmed. The audit is adjudged to be a public record, and as to it (because of the principle involved) this court\u2019s mandate shall issue immediately. It is so ordered.\nState v. Springer, 43 Ark. 91; Hill v. State, 185 Ark. 379, 47 S. W. 2d 31.\nBut see act 137 of 1939.\nTerry v. State, 149 Ark. 462, 233 S. W. 673.\nMcNutt was associated with the defendant and at the time of this trial was under indictment, charged with embezzlements similar to those for which Collins was being tried.\nVaughan v. State, 58 Ark. 353, 24 S. W. 885; Pate v. State, 152 Ark. 553, 239 S. W. 27.\nSee Stormes v. State, 81 Ark. 25, 98 S, W. 678; Underhill on Criminal Evidence, 4th Ed., \u00a7 492, page 1009; Bledsoe v. State, 130 Ark. 122, 197. S. W. 17; Monk v. State, 130 Ark. 358, 197 S. W. 580; Speer v. State, 130 Ark. 457, 198 S. W. 113; Holden v. State, 156 Ark. 521, 247 S. W. 768; Bohannon v. State, 160 Ark. 431, 254 S. W. 683; Yelvington v. State, 169 Ark. 359, 275 S. W. 701; Warlord v. State, 175 Ark. 878, 1 S. W. 2d 23; McCauley v. State, 177 Ark. 1031 9 S. W. 2d 236.\n122 Ark. 197, 182 S. W. 906.\nNash v. State, 73 Ark. 399, 84 S. W. 497.", "type": "majority", "author": "Grieein Smith, C. J." } ], "attorneys": [ "O. W. Wiggins, Kemieth W. Coulter and Edward II. Coulter, for appellant.", "JacTc Holt, Attorney General, and Jno. P. Streepey, Assistant Attorney General, for appellee." ], "corrections": "", "head_matter": "Collins v. State.\n4177\n143 S. W. 2d 1\nOpinion delivered July 8, 1940.\nO. W. Wiggins, Kemieth W. Coulter and Edward II. Coulter, for appellant.\nJacTc Holt, Attorney General, and Jno. P. Streepey, Assistant Attorney General, for appellee." }, "file_name": "1027-01", "first_page_order": 1045, "last_page_order": 1061 }