192 Ind. 86 | Ind. | 1921
This is a criminal prosecution upon an indictment which charges embezzlement by the clerk of the Shelby Circuit Court, in violation of §391, Acts 1905 p. 671, §2284 Burns 1914.
The facts of the case are best set forth in the indictment which is in two counts as follows, except the formal part to wit:—
“The Grand jurors of Shelby County, in the State of Indiana, good and lawful men, duly and legally impanneled charged and sworn to inquire into felonies, and certain misdemeanors in and for the body of said County of Shelby in the name and by the authority of the State of Indiana, on their oaths present that on the third day of November, A. D. 1914, Cecil B. Collins was elected Clerk of the Circuit Court of Shelby County, Indiana, for the term of four years, ending on the first day of January, A. D., 1919; that the said Cecil B. Collins, being duly commissioned gave bond and duly qualified and entered upon the discharge of the duties of said office aforesaid on the first day of January, A. D., 1915; that the said Cecil B. Collins on the sixth day of March, 1918, signed his written resignation to the Board of County Commissioners of Shelby County, Indiana, and the same was filed with and accepted by the said Board of County Commissioners of Shelby County, Indiana, on the seventh day of March A. D., 1918; that one Gordon Thurston was on the seventh day of March, A. D. 1918, duly and legally appointed to the said office of Clerk of the Circuit Court of Shelby County, Indiana; by the
“For further and second count to said indictment the Grand Jurors aforesaid, upon their oaths aforesaid, in the name and by the authority of the State of Indiana, on their oaths present that on the third day of November, A. D. 1914, Cecil B. Collins was elected Clerk of
The trial of the accused upon his plea of not guilty, resulted in a verdict of guilty by the jury, and a sentence of imprisonment, fine and disfranchisement.
The accused filed a motion for a new trial, which was overruled, and he appealed from the judgment of the trial court to this court. The errors pleaded in the appeal are: 1. The trial court erred in overruling the motion to quash the indictment; 2. The facts stated in the first count of the indictment do not constitute a public offense; 3. The facts stated in the second count of the indictment do not constitute a public offense; 4. The trial court erred in overruling the motion by the accused for a new trial.
The motion for' a new trial is composed of fifteen specifications of error, but the presentation by appellant in his brief has limited the matters to be reviewed upon this appeal, to the questions:
1. The overruling of the motion to quash the indictment. 2. The refusal by the trial judge to give the peremptory instruction to the jury to acquit, and for erroneously giving the jury instruction No. 11. 3. The act is in violation of the Fourteenth Amendment of the Constitution of the United States.
While the point is made in appellant’s brief that the statute is violative of the Fourteenth Amendment to the Federal Constitution, and that the construction heretofore given of the statute by this court, is violative of §13 of the Bill of Rights of Indiana, which will be considered in this opinion, counsel for appellant in an elaborate brief, and by an argument pregnant with legal ingenuity, has contracted the whole case into one point:
Much has been written in the opinions of the courts of Great Britain and of the state and federal courts here, about the institution of the crime of embezzlement; in that it was not an offense known to the common law, and hence not entirely amenable to common-law rules of construction. The institution of conversion, of misappropriation, as a crime — named embezzlement — was in a. sense looked upon at first in the United States as another invasion of the constitutional privileges and immunities of its citizens. By legislation first in this state, it was made a crime for a treasurer of a Plank Road Company to convert to his own use money belonging to the company which contained the clause, that a “neglect to pay over on demand * * * Shall be deemed prima facie evidence that he has embezzled * * Acts 1852, ch. 80, 1 R. S. 1852 p. 394-399. This act of the legislature seems to be the first direct legislation making the crime of embezzlement, although in former statutes, failure of certain school officials to comply with the law which regulated their administration of the office, together with the proper expenditure of money, subjected such official to a fine.
In 1855 there followed another law which pertained directly to any clerk of a circuit court, which made it a felony for any such clerk to fraudulently fail or re
Also in 1855 an act was passed making it a felony for any officer, agent or clerk of the state bank or of its branches who shall embezzle or appropriate the funds,with intent to cheat and defraud. Acts 1855 p. 229. These statutes were specific, and it. will be seen that those affected were persons connected with road companies, banks and certain officials including clerks of the circuit courts.
No more legislation upon the subject was enacted until the called session of the legislature in 1865. Undoubtedly this legislature believed the fraudulent conversion of the property of another was not a crime in this state, for it enacted:
“Sec. 2. As there is no law punishing the offense, aforesaid, an emergency is hereby declared for the taking effect of this act * *
This law included those connected with banking, railroad, insurance, road, telegraph, manufacturing companies, all corporations, traders, merchants, persons, but was silent as to public officials. Acts 1865 p. 204.
In 1871, the legislature in an act relating to fees and salaries, the failure of clerks and certain other officers to pay fees collected into the county treasury, was made embezzlement; so that as yet there was no general statute upon the subject which related to officials. Acts 1871 p. 25.
A new fee and salary act was passed by the legislature in 1873, §39 of which act defined embezzlement of certain officers, including clerks, who failed at the expiration of the term of office to pay over to his successor in office all moneys to whomsoever due. Acts 1873 p. 119. A not very close scrutiny of the several acts, when
By Acts 1879 p. 126, a new statute was enacted, which made embezzlement as defined therein, a crime, but it did not name the clerk of any court or any other public officer, thereby apparently recognizing the crime of embezzlement by clerks and other public officers by not including them in this act, yet by section 3 enacted: “All laws upon the subject of embezzlement, now in force are hereby repealed, * *
While in this discussion it is unnecessary to inquire whether or not the courts held that the statutes, Acts 1855 p. 89, §1; Acts 1873 p. 119, §39; Acts (Spec. Ses.) 1875 p. 31, §51, which defined embezzlement by clerks of courts were repealed by said §3 of the Act of 1879, it is well to at least suppose that the legislature of 1879 intended to wipe the slate of all former embezzlement acts by the repealing section of this act, for the next legislative session in 1881, by a re-enactment of the criminal offenses, by Acts 1881 p. 182, §42, §1943 R. S. 1881, made the fraudulent failure or refusal of a clerk of any court, at the expiration of his term of office or at any time during such term, when legally required by the proper person or authority, to pay over to such person who may be lawfully entitled thereto, all moneys, a crime of embezzlement. The crime, unknown to the common
A careful perusal of these different acts defining embezzlement will disclose that not one of the recent acts in direct language requires that the money shall be paid over to the successor in office only when demanded by such successor so to do. The courts have wrestled with this point, the necessity of demand in prosecutions, about as much as the legislature has with the whole subject of embezzlement.
The crime rests upon conversion. If the with-holding of the money by the outgoing officer did amount to a conversion, at common law there was. no crime. The person who was entrusted with money or property, and therefore lawfully possessing it, could defeat the action for recovery thereof up to the time such possession by him was made unlawful, either by his act of commission
But criminal law is always construed strictly in favor of those who are accused of disobeying it; and this strict construction begins automatically with the formal accusation, the indictment, and blindly follows with its never ceasing protection to final judgment.
The law in this case may charge the crime, although the accused has and many have had lawful possession of the money to the time of his resignation, and before being indicted. He may have had it deposited safely in some bank, sound and solvent when the deposit was made, but bankrupt now; the money may have been safely placed in a burglar proof safe in his office, and have been stolen by some one unknown to him and without his fault; a trusted deputy, purloining clerk, or crafty bookkeeper may have secured the money, and even now have possession of it; all, much, or part of it- may have been lost in making change across the counter; checks may have been received in payment of fees, judgments and -cost, which checks were credited as cash, and receipts in full given for the debt to be paid
The growth of the law of embezzlement in this state has been followed closely hereinbefore to lead up to the step now before us. With all the experience which the legislature had in enacting embezzlement into a crime, the latest enactment in 1905, would have been still-born, had it not been for the stream of life given it by the construction of the. act of which this is the re-enactment, (Acts of 1888). The law sought to punish by imprisonment in the penitentiary, and accompany this with a fine and disfranchisement without defining such conversion as felonious, but in so doing relied upon the construction given the previous law. Stropes v. State (1889), 120 Ind. 562, 22 N. E. 773.
The court in the proper exercise of its power, interpolated the word “feloniously” into the section of the statute (Acts 1883 p. 106) which saved the life of the new statute. This action by the court has been recognized for so long a time and in so many cases, and in other criminal laws, other than those defining embezzlement that the discussion of that action will not be resumed here. The parties hereto take it for granted as the law of the case now; so does the court, except for the charge of unconstitutionality.
The statute reads: “And any clerk, * * * so failing to pay over such moneys, and any such successor to any clerk, * * * who shall fail to pay over any such moneys to parties entitled to receive the same, when called on to do so, shall be deemed guilty.” Judgment
This is the nub of this case. It will settle the motion to quash, the question as to the correct ruling on the two instructions, and the specifications of the motion for a new trial that were argued, save constitutionality, if the decided cases are sufficient foundation for the reasoning and conclusions.
A case in point is Shook v. State, ex rel. (1876), 53 Ind. 403, where the court says: “When the guardian was removed, his trust expired, and it was his duty to pay over the money of his wards to the proper person without demand;” based upon 2 R. S. 1876 p. 586, §9.
Another reply to appellant’s contention that his successor should have demanded him to pay over the money, is that it has been held that the statute is silent as to the'making of a demand in this kind of a prosecution,
The point made by appellant, that to recover from one who has lawful possession of the property of another, the owner must demand possession thereof before suit, obtains in criminal as well as civil law. But when such lawful possession has been changed to an unlawful one — conversion—whether by the act of the one in lawful possession, by misappropriation, matters not, for as soon as such possession becomes unlawful, no demand is necessary before suit in trover. This is well illustrated by a case in Indiana. The accused purchased a horse at a public auction, and after keeping him for some time sold the horse, without any knowledge that the horse had been stolen. The owner of the horse sued the innocent auction purchaser, for the value and recovered. The auction purchaser contended that a demand should have been made upon him before suit, upon the theory that there had been no conversion. The purchaser at auction acquired no property in the horse, and a sale by him amounted to a conversion. The selling of the horse and receiving money in payment was held to be conversion. Robinson v. Skipworth, supra. In other words, we believe the distinction between larceny and embezzlement is finer than heretofore generally stated. Former statements draw the line thus: In larceny possession is obtained by a trespass, while in embezzlement, the possession was gotten lawfully, and not by trespass. In reality there can be no crime of embezzlement without some unlawful .act, termed felonious. And there is a trespass where there is embezzlement. The trespass is in doing that with the property,
In the case at bar there was a trespass in holding the money as an individual instead of holding it as an officer. Such a holding was in violation of the statute under which he, the officer, obtained possession, and therefore a trespass, a conversion. The law of embezzlement has grown steadily, but slowly, during which time, through the changes and additions enacted by the legislature, and by the construction of the several statutes by the courts, to the same definite end, which is, to punish the offender. The latest enactment by the legislature, and the latest construction of the law by the courts, need give no innocent citizen fear before the law. Former statutes defining embezzlement made unlawful detention, unlawful conversion of the goods of another to one’s own use, or permitting others to unlawfully convert it to their uses, the crime of embezzlement, under which statutes it was very difficult to prove the elements of offense. The statute now makes the act of omission the conversion, and the crime is established by proving a failure to pay over. This satisfies the statement in 38 Cyc 2006: “The essential element of conversion is not the acquisition of the property by the tortfeasor, but a wrongful deprivation of it to the owner.” This also satisfies the holding of this court, that a fraudulent conversion actual or constructive, must be averred. It may be contended that a failure to pay or to deliver at the time stated in the contract, or as stated in the law, is constructive conversion. If so, it is supported by abundant impressions of the law. State v. Nugent (1914), 182 Ind. 200, 106 N. E. 361; State v. Winstandley (1900), 155 Ind. 290, 58 N. E. 71.
It has been held by courts of other jurisdictions that such a failure to pay over as provided by the statute,
So the conversion may be the wrongful detention after the expiration of the time of such lawful possession. State v. Nugent, supra; State v. Reynolds (1900), 65 N. J. Law 424, 47 Atl. 644; People v. Goodrich (1904), 142 Cal. 216, 75 Pac. 796; People v. Ward (1901), 134 Cal. 301, 66 Pac. 372, in which case a demand would be unnecessary.
In a well, considered English case, Pollock, Lord Chief Baron, says: “It appears to me that this act of parliament was intended to give the utmost facility in punishing persons guilty of receiving and improperly disposing of money belonging to the crown.” Regina v. Moah (1856), 36 Eng. Law & Eq. 592.
It appears to be the law, that if there had been no conversion, a mere demand would not make it so. Even when stated in the statute, that failure to restore within a time certain after demand, the accused shall be pre
The indictment was good without pleading a demand, and the motion to quash it was correctly overruled; which also answers the second, third and fourth assignment of error.
The record is without error and the judgment is affirmed.
Townsend, C. J., Willoughby, Ewbank, JJ., concur in conclusion.
Myers, J., dissents.