52 Miss. 634 | Miss. | 1910
after stating the facts as above, delivered the opinion of the court.
Under the facts of this case it becomes necessary to consider one question alone, which goes to the root of the. whole matter, and that is whether the plea of autrefois convict presents a good defense. The indictment was drawn under Code 1906, § 1141, Code 1892, § 1063; Code 1880, § 2787), which provides: “If any state officer or any county officer * * * shall unlawfully convert to his own use any money or other valuable thing which comes to his hands or possession by virtue of his office or employment, or shall not, when lawfully required to turn over such money .or deliver such thing, immediately do so according to his legal obligation, he shall, on conviction, be imprisoned in the penitentiary not more than twenty years, or be fined not more than one thousand dollars, or imprisoned in the county jail not more than one year.”
This statute is an exact transcript of Code 1892, § 1063, and substantially the same as Code 1880, § 2787, except the substitution of the disjunctive “or” for the conjunctive “and” between the words “employment” and “shall,” and the punishment is increased. It is contended on behalf of the state that the statute makes two separate and distinct offenses of the unlawful appropriation of the funds, namely, the unlawful conversion, and the unlawful failure to turn over and deliver; while for the appellant it is claimed that both clauses of the statute define only one offense, - embezzlement, which may be charged and proven in either one of the ways- laid down, the unlawful appropriation, or the unlawful failure to turn over. In construing the statute, it should be borne in mind that embezzlement is a statutory crime. No such offense was known to the common law. 1 Bishop, Crim. Law (8th ed.) § 567; Hemingway v. State, 68 Miss. 371, 8 South. 317.
In the latter case, referring to Code 1880, § 2787, the court
Evidently the purpose of the legislature in substituting, in Code 1892, § 1063, Code 1906, § 1141, the disjunctive “or” between the first-and second clauses of the statute, instead of “and,” was to make it easier to prove the unlawful conversion, so that it could be proven either under the first clause, by. showing an unlawful appropriation, or under the second clause, by showing an unlawful failure to turn over. The statute is designed for the security of the funds in the hands of the fiduciary.
In view of the facts of this case, and the holding that the statute makes only one offense of the unlawful misappropriation of the same fund, under the authority of State v. Gaston, 96 Miss. 183, 50 South. 569, the judgment is reversed, and appellant discharged from further prosecution.
Reversed.