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The People v. Epping

OPINION FILED NOVEMBER 18, 1959.

THE PEOPLE OF THE STATE OF ILLINOIS, DEFENDANT IN ERROR,

v.

EDWARD A. EPPING, PLAINTIFF IN ERROR.



WRIT OF ERROR to the Circuit Court of Sangamon County; the Hon. DEWITT S. CROW, Judge, presiding.

MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:

Edward A. Epping was indicted in Sangamon County on certain charges arising out of his involvement in the office of Auditor of Public Accounts. His indictment, containing five counts, charged the defendant with obtaining the sum of $11,416 by means of confidence game; with forgery of a specified State warrant in the above sum payable to Elmer J. Bretz; with larceny based upon the general embezzlement statute; and counts 4 and 5 charged generally embezzlement by a public officer or his servant.

A jury trial resulted in four verdicts of guilty as to the charge of confidence game, forgery, larceny and embezzlement by a public officer or his servant. The court entered a judgment on the verdict of the jury, sentencing the defendant to a term of from one to 10 years on each of the four verdicts, the sentences to run concurrently. This writ of error is prosecuted to review the proceedings below.

The defendant assigns as error that the verdicts were not supported by the evidence, which was insufficient to find the defendant guilty beyond a reasonable doubt. It is further urged as error that the trial court admitted certain testimony and excluded certain evidence to the detriment of the defendant. In addition to these suggestions of error, it is asserted that as a matter of law there is an inconsistency between the verdict finding the defendant guilty of forgery and verdicts relating to larceny and embezzlement, as well as an inconsistency between the verdict of larceny and embezzlement by a public officer.

In determining the merit of the assigned error that the evidence will not sustain a conviction, we have reviewed and find it necessary to relate the substance of the testimony of most of the witnesses.

The first witness for the prosecution, George Benicky, an employee in the office of the Auditor of Public Accounts as custodian of the vault, outlined the usual procedure followed in the Auditor's office in the processing of State warrants. This witness testified that in each instance a voucher is drawn designating the date, the amount and the named payee. In addition, the voucher contains information as to the warrant number, as well as the fund or appropriation from which the money is to be paid. The warrant is then prepared in the Auditor's office based on the voucher information and in most instances the warrants, at least for contractual services, are mailed to the named payee.

The warrant, signed by the Auditor and countersigned by the State Treasurer, and after being forwarded to the payee and processed by him through his regular banking channels, is returned by the bank to the Treasurer. The Treasurer pays and cancels the warrant, charging the same to the designated appropriation. The paid and canceled warrant is then returned to the Auditor's office and further processed, and eventually filed. Some 20,000 warrants are thus processed each day.

In the handling of these warrants microfilm copies are made and the originals are usually destroyed six years or so after their date. The microfilm record is retained. This witness testified that the warrant which is the subject matter of the indictment here, was a State warrant and that he had searched for the original but was unable to find the same and produced a photostatic copy obtained from the microfilm. This particular warrant was shown to have been processed through the Southmoor Bank in Chicago and bore a typewritten endorsement: "For the deposit and credit of Elmer J. Bretz."

Lester R. Hart, of the State Treasurer's office, outlined the processing procedure in that office and testified that the indictment warrant had been paid by the State Treasurer. This witness, in addition to testifying that the instant warrant was paid with the typewritten endorsement, further testified and identified an exhibit, being a warrant paid by the State although it contained a typewritten endorsement.

Edward A. Hintz, another witness for the People, stated that he had been a vice-president and president of the aforementioned Southmoor Bank and Trust Company in Chicago; that he knew the defendant and his superior, the then Auditor of Public Accounts, Orville Hodge; and he testified that the indictment warrant had been processed through his bank; that the defendant had brought the warrant to the bank; that either he or his secretary had typed the endorsement, and that the money in payment thereof had been given to the defendant. This particular warrant was handled through an account known and referred to throughout the testimony as the "brown envelope account," which was an account through which some $1,303,000 was handled. This witness further testified that he handled this account and that he kept memoranda with reference thereto, and he then proceeded to enumerate instances relating to entries in this account wherein State warrants drawn to certain named payees were, with some variations, processed as was the indictment warrant, and that in most instances the defendant, Epping, is described as the person who presented the warrants, who obtained the cash and who in his frequent visits to the bank inquired as to the then balance of the so-called "brown envelope account." Except for a couple of instances, this witness testified that only the defendant or the then Auditor, Orville Hodge, delivered these warrants to him. He further stated that this brown envelope account was a personal account maintained by him, that it was not a matter of bank record, and he admitted that personnel in his bank under his direction cashed warrants marked for deposit. This witness, on cross-examination, established that the defendant took a total of some $196,000 in cash withdrawals from the account.

Several witnesses were called by the People who were identified as named payees in warrants that had been processed through the brown envelope account and they denied ever having received the warrant or the proceeds thereof, and such testimony was obtained from the payee of the indictment warrant. In most instances, the payees were established to have been persons who had done business with the State of Illinois and who had received State warrants in payment for their materials or services. A witness, Carolyn Marshall, secretary to the witness Hintz, testified that she typed the endorsement on the indictment warrant as well as on other warrants, her certainty with reference to establishing that she typed the endorsement on the indictment warrant being based upon her belief that she could identify the typewriter type.

Other personnel in the office of the Auditor of Public Accounts testified with reference to the instructions that they received from the defendant who was variously described as an administrative assistant, or executive assistant or the right-hand-man of the Auditor. One of these witnesses testified that she was directed by the defendant to prepare vouchers for the payment of certain sums without invoices and that these vouchers were, according to her instructions, taken to Harold DeSilva and he would pass them for payment. DeSilva testified over the objection of the defendant as to a system and procedure whereby the expenses of the Auditor at his home at Lake Springfield during his tenure in office were all paid through the means of warrants payable to DeSilva.

It was established by this testimony that the defendant instigated and was instrumental in this use of State funds, the scheme being one wherein warrants payable to DeSilva would be obtained, be cashed and the money returned to the Auditor. The strenuous objection to the admissibility of this testimony and the documentary exhibits in support thereof is based upon the assertion by the defendant that the named payee was genuine and that it was intended that he receive the warrants and cash them, that he was the one who did receive, endorse and cash them, and that proof of the existence of this scheme would have no bearing upon the indictment here. This testimony and the documentary material was admitted as being an element to show guilty knowledge and criminal intent. Certainly it was established that the scheme with reference to the obtaining of money for the payment of personal expenses was similar to and almost identical with the scheme demonstrated to have been used in the indictment warrant and was admissible for its probative value. Financial crimes as complex and involved as this scheme are of a ...


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