Larmore v. State

Bond, C. J., delivered the opinion of the Court. The appellants, formerly constituting the County Commissioners of Wicomico County, were jointly indicted and convicted of the common law crime of misfeasance in office, in approving and passing for payment fictitious and fraudulent claims made up by a dishonest clerk. Mechem, Public Offices and Officers, Sec. 1022; 2 Wharton, Criminal Law, 12th Ed., Sec. 1910. They now on their appeal urge the existence of error in the overruling of their demurrer to two counts of the indictment, a second and a seventh, and in the exclusion of evidence ³⁴⁹ offered by them to prove diligence in the manner of executing their duties, and in their reliance upon their clerk.

The duties of the office are prescribed in the Code, 1939, Article 25. By Section 1 the commissioners are given charge and control of the county property, by Section 9 they are directed to assess and collect taxes for county expenses, “and pay and discharge all claims on or against the county which have been expressly or impliedly authorized by law”; and by Section 10 it is provided that “they shall allow no claim against the county not properly chargeable to the same and for which the claimant shall not produce a legal voucher.” By Section 207 of Article 23 of the Code of Public Local Laws, 1930, of the county, money duly deposited is to be drawn only upon check of the president of the commissioners, countersigned by the treasurer of the county, “in payment of debts and accounts, due by Wicomico County, duly approved and passed by said county commissioners and by them ordered to be paid.” There was evidence tending to prove that in the year 1940 two fraudulent and fictitious vouchers, for $228 and $135, respectively, among others, were issued and paid upon presentation by the clerk to the commissioners, and signatures forged by her, when there was no indebtedness for the amounts and no authorization or warrant by the commissioners. The clerk, in the course of a career of theft covering some years, followed a practice of taking checks from the treasurer’s office, without authority, having them signed by the president of the board upon her assurances of indebtedness, then having the treasurer countersign, and with the countersignature affixed returning to the office of the commissioners, forging the names of payees, and cashing the checks and appropriating the money to her own use. Spurious bills were sometimes presented to the commissioners and sometimes it was represented that the bills were too voluminous for presentation.

This clerk had first been appointed by a previous board of commissioners, under the authority of the Acts of ³⁵⁰ 1927, Chapter 226, and .Acts of 1937, Chapter 207 (Wicomico County, Code, Pub. Loc. Laws, 1930, Art. 23, Sec. 202), which defined the clerk’s duties and required that he.should give bond in the penalty of §10,000 for the faithful performance of them. After a general direction that the clerk shall perform all duties required by law, or by order of the commissioners, it is specified that he shall keep minutes of the board’s actions, preserve papers presented to it and acted upon, keep books of the county properties and moneys, and of appropriations made by the board, keep a warrant book of the county, and make out every warrant authorizing payment of moneys, to be executed by the president of the board and by the clerk, and keep entries showing the contents of the warrants.

The duties specified do not to any extent include those previously imposed on the members of the board themselves; they are clerical duties, or duties of an assistant. The commissioners remain charged with the management of the county’s finances as specified. The charge in the counts of the indictment considered on the demurrer was that the commissioners “unlawfully and negligently did allow, approve and pass for a payment a fictitious and fraudulent claim against Wicomico County* designated as Voucher No. 49,599 (in the one count or 49,276 in the other), in the amount of §228 (in the one count or §135 in the other) without first having inquired and found out for themselves whether any such claim was due by Wicomico County and for which they, while acting in the capacity of commissioners, as aforesaid, were authorized and required by law to pay.” It is objected that this charge demands the exercise of an impossible degree of care on the part of the commissioners, and wrongly supposes that they are denied any right to rely upon the