| Ark. | Jul 9, 1917
(after stating the facts). The indictment in this case was returned under section 1990 of Kirby’s Digest. The section reads as follows: “It shall be unlawful for any officer of this State, or of any county, township, city or incorporated town in this State, or any deputy, clerk or other person employed by any such officer, having the custody or possession of any public funds, by virtue of his office or employment, to use any of such funds in any manner whatsoever for his own purpose or benefit, or to loan any of such funds to any person or corporation, whomsoever or whatsoever, or permit any person or corporation whomsoever or whatsoever to use any of such funds, or to pay or deliver any such funds to any person or corporation, knowing that he is not entitled to receive it, or for any such officer to wilfully fail or omit to pay over any such funds to his successor in office at the expiration of his term of , office; but collectors of taxes, county treasurers and treasurers of cities and incorporated towns may deposit the public funds in their custody in incorporated banks for safekeeping; and the said officers and the sureties on their official bonds, the bank and the stockholders of the bank shall be liable for all funds that such bank on demand shall fail to pay to the person entitled to receive the same.”
(1) It is contended by counsel for the defendant that the indictment is insufficient because it does not contain any averment that the misappropriation of the funds by the defendant was intentional or wilful. The indictment does charge, however, that the defendant “did then and there unlawfully, feloniously and fraudulently fail and omit to pay the amount as aforesaid to said county due by him, the said W. L. Parker, on settlement, and did then and there unlawfully, feloniously use said money and funds as aforesaid for his private purposes, and convert the same to his own use, ’ ’ etc. To charge that an act is feloniously done includes a charge that it is done wil-fully and with criminal intent.
(2) Counsel for the defendant also urges that since the Legislature of 1911 passed a special statute paying the officials of Polk County salaries and prescribing the method of their accounting and settlement with county, that section 1990 of Kirby’s Digest does not apply. The special act placing certain officials of Polk County on a salary may be found in the Special Acts of Arkansas for 1911, page 132. The act requires certain county officials of Polk County to keep a record of all moneys or other evidence of value received or earned by them as such officers under the laws of this State. It is also made the duty of such officers to make a report under oath quarterly to the’commissioners of accounts and a final report to the commissioners of accounts at the expiration of their terms of office.
In these reports he is required to set forth the total amount of money, etc., received by them. It is made the duty of the commissioners of accounts to review and pass upon these reports. The officers named in the act are required to pay the excess of public moneys in their hands immediately into the treasury of Polk County after such accounts are passed upon by the commissioners of accounts. This special act has an entirely different object to that sought to be accomplished by section 1990 of Kirby’s Digest, and it is readily apparent from reading the two acts that they in no wise conflict with each other.
(3) It is also contended that the oral charge to the jury copied in the statement of facts was tantamount to a directed verdict against the defendant and constitutes reversible error. In this contention we think counsel are correct. In the declaration of rights in the Constitution of 1874, article 2, section 10, it is provided among other things, that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed.
Article 7, section 23, provides that judges shall not charge juries with regard to matters of fact, but shall declare the law. In Roberts v. State, 84 Ark. 564" date_filed="1907-12-16" court="Ark." case_name="Roberts v. State">84 Ark. 564, the court held that it was error to direct the jury to return a verdict of guilty in a prosecution for a misdemeanor which is punishable by imprisonment. The court quoted from Bishop on Criminal Procedure (2d ed.), Vol. 2, p. 813, the following:
“The judge is incompetent to convict one of crime, even though he acknowledge it, except on a plea of guilty. The evidence is exclusively for the jury. However conclusive of guilt it may he, he can only tell them that, if they believe such and such to be the facts, the law demands a verdict of guilty; he can not otherwise direct such verdict.”
In the case of Shipp v. State, 128 Tenn. 499" date_filed="1913-09-15" court="Tenn." case_name="Shipp v. State">128 Tenn. 499, in discussing the question the court said:
“Whatever may be the rule in relation to misdemeanors, the weight of authority is overwhelming to the effect that in a prosecution for felony, where a plea of not guilty is interposed, it is not permissible for the court to direct a verdict of guilty or to pass on any question of fact unfavorable to the defendant. This is true even though the incriminating evidence is uncontradicted or conclusive.”
In the case of State v. Koch, 34 Mont. 490, 8 A. & E. Ann. Cas. 804, the court said:
“Where the defendant in any criminal prosecution pleads not guilty, the trial court, no matter how conclusive the evidence may be, can not instruct the jury to return a verdict of guilty, as the defendant can not be deprived of his absolute constitutional right to have the question of his guilt or innocence determined by the jury without coercion by the court. ’ ’
In the case of Konda v. United States, 166 F. 91" date_filed="1908-10-06" court="7th Cir." case_name="Konda v. United States">166 Fed. 91, 22 L. R. A. (N. S.) 304, the court held that the question of whether or not a pamphlet for the mailing of which one is on trial, is non-mailable, can not be determined by the court as a matter of law, although the evidence is un-contradicted, and the jury can not be directed to bring in a verdict to that effect, but the question must be left to the determination of the jury. The reason the court may direct a verdict in a civil case and in a misdemeanor case where punishment is by fine only is that the court has the power to set aside verdicts in such cases and the action of the court cuts off the possibility of useless verdicts by directing the jury the only verdict which the court would let stand. But in criminal cases, where part of the punishment is by imprisonment, if the jury returns a verdict for the defendant, the judge can not set it aside and order a new trial, even though it may think the evidence for the State is nncontradicted.
In the case of State v. Riley, 113 N.C. 648" date_filed="1893-09-05" court="N.C." case_name="State v. . Riley">113 N. C. 648, 18 S. E., 168, the court held that, although the evidence for the State in a criminal case is uncontradicted, the court can only instruct the jury to return a verdict of guilty if they believe the State’s evidence. In U. S. v. Taylor, 12 Fed. 470, the court said:
“By his plea of not guilty the deefndant must be understood as denying the truth of the information or indictment and as not conceding the truth of what the witnesses for the government have sworn to. This is so, notwithstanding the fact that no witnesses for the defendant contradicted the statements of the witnesses for the prosecution. In this condition of the testimony it was the right of the jury to pass upon the credibility of the witnesses even if unimpeached as to character, and to consider whether, upon applying all the tests of manner, clear or confused statement, prejudice and accuracy of memory, they were to be believed. It was within the province of the jury to disbelieve the witnesses for the government.” See also Territory v. Kee (N. M.), 25 Pac. 924; State v. Wilson, 62 Kan. 621" date_filed="1901-03-09" court="Kan." case_name="State v. Wilson">62 Kan. 621, 52 L. R. A. 679; State v. Godman, 145 N.C. 461" date_filed="1907-11-06" court="N.C." case_name="State v. . Godwin">145 N. C. 461, 123 A. S. R. 467; Huffman v. State, 29 Ala. 40" date_filed="1856-06-15" court="Ala." case_name="Huffman v. State">29 Ala. 40; Thompson on Trials (2 ed.), Vol. 2, § 2149.
We have held that upon the trial of a person indicted for an offense consisting of different grades, and there is no evidence to warrant submission of one of the lower grades to the jury, the judge is not required to instruct on that grade. For instance, if the defendant is indicted for murder and there is no evidence upon which to predicate an instruction of manslaughter the court is not required to instruct the jury on manslaughter. We have held that this is not an invasion of the province of the jury as to question of fact; but that it is simply applying the law to the facts. It would be quite a different question, however, for the court to tell the jnry that the facts on a certain decree of homicide were nndispnted.
In Harris v. State, 34 Ark. 469" date_filed="1879-11-15" court="Ark." case_name="Harris v. State">34 Ark. 469, an exception was saved to the action of the conrt in giving an instruction after the close of the argument. This conrt held that such action of the court was not error hut said: ‘ ‘ Judges may not now, as under the former practice in charging juries, sum up the evidence, and tell them what facts are proven and what are not, and leave them to find such facts only as the court may deem disputed or doubtful, but it is the province of the court to declare the law applicable to the case, and the court is not obliged to be silent after the close of the argument.” The oral charge was given by the court after the jury had failed to agree and had reported their disagreement to the court.
We are of the opinion that the oral charge in question in this case is neither more nor less than an instruction to convict. The court told the jury that the case was not open to dispute on any essential fact. This the court was not warranted in doing, and it in effect was an instruction to the jury to return a verdict for the State.
For this error the judgment must be reversed and the cause remanded for a new trial.