10 Mich. 54 | Mich. | 1862
This case comes to this Court on exceptions, after verdict and before judgment, in pursuance of chapter 166 Revised Statutes of 1846 (Comp. Laws, chap. 197).
The information is based upon § 5771 Comp. Laws, and charges the defendant with having embezzled the moneys of the State while State Treasurer.
Exceptions were taken to the ruling of the Circuit Judge upon the admission of evidence, and to his charge to the jury. The jury returned a verdict of guilty.
If is insisted by the Attorney General that the questions involved in the motion in arrest of judgment, relating, as they do, to the information, or the record proper, can not be raised in this Court, upon the present form of proceeding, but only upon writ of error after judgment.
We see no ground for this objection. The whole record is certified to us, and required to be certified in this case substantially in the same manner as upon the return to a writ of error: it is therefore judicially before us, as well in the one case as the other, so far, at least, as to enable us to pass upon all questions raised by the exceptions, which is as far as necessary to go to dispose of all the questions raised upon the motion in this case. And it would seem from the decisions in Massachusetts, (from whose statute this chapter of ours is copied) that a motion in arrest of judgment is treated as a proper subject of exceptions under this statute: — Commonwealth v. Dougherty, 6 Gray, 349; Commonwealth v. Sullivan, Ibid. 477; Commonwealth v. Cummings, Ibid. 487; Commonwealth v. Smart, Ibid. 15.
But in the present case it is unnecessary to decide whether any question, not otherwise a proper one for exceptions, can be made so by a motion in arrest, and exceptions to the decision upon the motion: as we are all of opinion that the sufficiency of the information would necessarily have arisen had no motion in arrest been made. Exceptions are presented here upon the admission
We must therefore inquire into the sufficiency of the information. It is claimed to be insufficient on four distinct grounds.
1st. That the State Treasurer is not included in § 5111 Compiled Laws, upon which the information is founded.
2nd. That the money claimed to have been embezzled is not charged to have been in the State Treasury at the time of its alleged embezzlement.
3d. That the embezzlement is not charged to have been committed in the State Treasury; and,
4th. That the information charges no offense within the section alluded to, or any law of this State.
All these points depend upon the construction of the statute in question; for it is not claimed that the information makes a case under any other statute. The language of the statute is, “If any officer, clerk or other person employed in the Treasury of this State, or in the treasury
The counsel for the defendant has urged, with great ability and ingenuity, that this statute was not intended to include the State Treasurer himself- — -that he, being a public, constitutional officer, the head of a department, the only security contemplated against his official misconduct is his official bond, and his only restraints a high sense of honor, liability to impeachment and removal from office; that it is unprecedented to render heads of departments liable to indictment for malversation in office — that in the phrase, “ employed in the Treasury of this State,” the term “ employed,” implies an employer, and must be understood in the sense of “procured to render service, as a master employs a servant,” — that, in this sense, it accords with the idea of embezzlement in other cases, which always supposes a relation of trust and confidence, as in the case of clerks and servants; and that it must therefore be understood here as applying only to subordinates in the office, employed by the Treasurer — that though the words are “ officer, clerk or other person employed,” the term officer' is satisfied by the Deputy Treasurer, who is appointed by the Treasurer, and an officer authorized by the statute.
This argument is not without plausibility; but we do not think it will stand the test of a careful examination.
That the dictates of honor, a regard for reputation, the hazard of incurring public scorn and reprobation by impeachment, and a liability upon his official bond, would be a sufficient restraint upon a man who has been elevated to an honorable position of public trust, might to the moralist in his closet seem a well founded theory. But unfortunately it is a theory ^yMch Ras too often been found to yield to the force of temptation, here and elsewhere, to admit of universal application. It pre - supposes that none will be elevated to office who do not prefer an unspotted reputation
We do not think the term “employed,” as used id our statute, can be restricted to the narrow sense contended for by defendant’s counsel. It is true such is the sense in-which it has been quite generally used in reference to embezzlement; but this we think has so happened, mainly because this crime always pre-supposes the offender to have come rightfully into the possession of the money oi' property, by reason of some position of trust and confidence; which is the principal feature distinguishing this offense from that of larceny. And the crime has been more frequently and generally provided for as to clerks, agents and servants, than as to public officers; and, as the former are so much more numerous, the offense has been more frequently committed by them. But the Statue Treasurer also occupies a position of trust and confidence, the only difference in this respect being that one is entrusted, confided in and employed, by a private person, or some officer or officers, the other by the public, by election or-appointment.
The primary signification of the word “employ,” is not that for which the defendant’s counsel contends; the-
But little force, however, can be given to an argument drawn from the primary or secondary meaning as given by lexicographers. The only question is, what is the sense in which it is used in this statute? — and this is to be determined from the context, and the apparent object of the provision, as indicated by the nature of the case and other statutes in pari materia. As to the object — the mischief to be guarded against — we can see no satisfactory reason why the Treasurer himself, who has entire control of the funds, and therefore better opportunities and greater temptations to peculation, should not be held liable as well as the subordinates appointed and removable by him, and whose opportunities and temptation are less.
A history of the origin of this section, and the various phases through which it passed in the legislation of the State, till it assumed its present form, will, we think, satisfactorily sho.w that the Treasurer was intended to be included. Its origin in this State (substantially copied from the Revised Statutes of Massachusetts) will be found in our Revision of 1838, p. 630, §26 : “If any clerk or other person employed in the Treasury of this State.” Here the word “officer” does not appear, nor does the section include the clause, “ or in the treasury of any county, or in any other public office within this State.”
But the Legislature of 1839 do not appear to have been satisfied with this provision, and, by amendment, added to a subsequent chapter, “That any public officer of this State (who) shall receive or be entrusted with the money or funds of the State, to be kept or disbursed for or on account of the State, and who shall expend or pay out such money or funds in any other manner, or for any
Thus stood the law until the Revision of 1846. This Revision consisted mainly of a revision and consolidation of then existing laws. We have seen that the section now in question, in its original form in the Revision of 1838, was, “if any clerk or other person employed in the Treasury of this State:” the law of 1839 applied to “ every public officer of this State who shall receive or be entrusted with, the money or funds of the State, to be kept or disbursed for or on account of the State.” In the Revision of 1846, this section does not appear as an independent provision, nor does the original section cited from the Revision of 1838 appear in' its original form; but, in its. place, we find the section in a new and amended form, the word “ officer ” for the first time appearing before the word “ clerk,” and the whole provision extended to “ any officer, clerk or other person employed in the Treasury of any county or in any other public office^ within this. State.” We think this furnishes a strong and satisfactory inference of an intention to combine, in this section, substantially the effect of the original section in the Revision of 1838, and the amendment by the act 'of 1839, so far at least as to the- persons intended to be included in. its provisions. We are therefore entirely satisfied the State Treasurer is an “officer” included within this section in its present form.
We must therefore examine the other objections to the information.
To constitute the offense under this section, it is undoubtedly necessary, not only that the embezzlement should be committed by an “officer employed in the Treasury,” but it must appear that the offense was committed “ therein,”
Before examining the several counts of the information, it will be proper to determine the sense in which the term “Treasury” is here used. It is insisted by defendant’s counsel that it is to be understood merely in the sense of locality, as descriptive of the particular building (in this case the argument would confine it to the particular room, as there is no treasury building) within the walls of which the Treasurer keeps his principal office, or place of official business, at Lansing, and where the public moneys are kept (though we do not readily see why the Treasurer may not keep such 'office in one building and the money in another). The Court below seems to have understood the term in the sense in which it was evidently used in the old and the new Constitution: “ No money shall be drawn from the Treasury but in consequence of appropriations made by law” — “No money shall be drawn from the Treaswry for the benefit of any religious society;” and in the statute requiring the Treasurer to make an, “ annual report of the balance in the Treaswry to the credit of the State:” — Comp. I. §161: “the fiscal year of the Treasury:” — Ibid. §163. “No moneys shall be paid out of the State Treaswry except upon the warrant of the Auditor General:” Ibid. §171; “charging the Treasurer the balance in the Treasury,” &c.: Ibid. §172. In all these cases the “money” and the “balance to the credit of the State” are manifestly regarded as being “in the Treasury” whenever and wherever it is in the official custody, or subject to the official control, of the State Treasurer in behalf of the State.
Let us see which is the more reasonable interpretation. That the Legislature intended this provision as a check to the rapacity of the “officers and clerks” who might be entrusted with the receipt, custody' and disbursement of the public moneys, can not be doubted; and if the law required
We think the Circuit Judge was clearly right in his views of what was intended by “ the Treasury” in this section, and that it was not intended to describe any particular place or locality; that, within the- meaning of this section, money is “in the Treasury” whenever and wherever it is in the official custody of the Treasurer, or qubject to his direction and control: and if he embezzle it while so in his official custody, or subject to his official control, it is an embezzlement in the Treasury. And a charge in an information of embezzling the moneys of the State, while in such official custody or control, is a charge of embezzling it in the Treasury. It -would savor too much of verbal nicety to require a strict literal adherence to the very words of the statute (except perhaps in the use of words and phrases which have acquired a specific or technical meaning, and w'hich of themselves express the very gist of the offense, as the word ravished in rape).
In view of these considerations, we are of opinion that the second, third, fifth and sixth counts of the information are sufficient, in the several respects mentioned. The other counts are more doubtful, and, for myself, I am inclined to think the first, fourth, seventh and eighth counts defective, in not showing, with sufficient certainty, that the embezzlement was committed while the money was in the official custody or control of the defendant; though its receipt by him into the Treasury is clearly averred.
But it is unnecessary to enter into a critical examination of the latter named counts; since the good counts are sufficient to sustain the verdict, and the judgment may be given upon them: — People v. Shannon, 5 Mich. 71.
The only objection urged under the fourth point, and not already disposed of, is that the information is fatally defective, in not specifying with certainty the particular kind of funds, whether gold, silver or, bills; or, if it was competent at all to dispense with this specification, then, at least, the sums charged to have been embezzled should have been identified by specifying the source from which they were received, so that it might at least be known whether the prosecution was for sums the receipt of which had not been credited, or others which had been credited and afterwards embezzled.
If it was necessary to allege either of these facts, it must be equally necessai-yto prove it, as nothing is required to be alleged which is not required to be proved: Comp.. L. § 6054. If, therefore, it was necessary for the information to identify the particular money embezzled, by showing the kind of funds, or from whom received, it must
"We do not think this case falls within either of these dispensing provisions; but, on the other hand, we do not think it falls within that class of cases with reference to which they were held to be necessary. In the case of clerks, agents and servants of private parties, there" is always a principal capable of scrutinizing the acts -of those in his service, and whose private interest prompts him to vigilance, _ who has at all times power to direct and control the kind of funds to be received, and to, change this direction at pleasure; and the custody or management which those in his service may have of his money or property is, in general, but momentary, or for a short interval, to be handed over to the principal from day to day or other short periods, or whenever he may choose to resume or assume its custody or management. The acts of such servant or clerk are generally performed under the direct supervision or control of the principal, who therefore has, or may at any time have,, full and accurate knowledge of the character of the particular sums, and from whom received, and possesses facilities for tracing out the facts while transpiring or recent.
But these considerations do not apply to the State Trear surer; he has by law the entire custody and management of the public money, and may receive such description of funds as he chooses, being always accountable for cash;
We can not therefore suppose the Legislature intended to require proof of the identity of the money embezzled by the Treasurer, or of the kind of funds of which it consisted, or of the particular source from which it was received, without supposing they intended to render the provision they were enacting a dead letter. Such a supposition is inadmissible in reference to such a provision. The statute
It is further objected, that the Circuit Court overruled a motion for an order requiring the prosecution to furnish a bill of particulars, under the general charges contained in the information.
Doubtless a general indictment for embezzlement is a -very proper case for enforcing a call for. such particulars. But the granting of an order for such particulars has, I think, generally been regarded as a matter resting in the sound discretion of the Court, depending entirely upon -fhe nature of each particular case as it appears to the Court before whom the trial is had, and its refusal therefore not assignable as error.
The order should never be refused where the Court can see any reason to believe such particulars necessary to-inform the defendant of the particular transactions, or instances of embezzlement, intended to be proved against him, so as to enable him to meet them. And it is possible — though upon this I express no opinion — that there
B.ut no such abuse appears here; the prosecution was by information; no information could be filed without a previous examination for the offense before an examining magistrate (unless waived by the defendant) : Laws of 1859, p. 393, § 8. This examination was required to be taken, m writing and to be forthwith certified and returned to the clerk of the Circuit Court where the cause was to be tried: — Comp. L. §§ 5992 and 6001. Upon the order for particulars being moved for, the bill of exceptions states, “it appearing to the Court that a preliminary examination had been had, and the Attorney General having stated that he should confine himself to the same charges as in such examination, the motion was overruled.” Now it would seem to be a fair inference from this language that the preliminary examination on file in the Court, was inspected by the Judge — that the examination showed the particular facts and transactions, sums claimed to be embezzled, &c., upon which the examination was had, as it naturally, if not necessarily, would. And the statement of the Attorney General, that he should confine himself to the same charges, was to be, and was understood as a statement that he should confine himself to the same items of receipt and embezzlement to which the preliminary examination related. ‘This examination being in Court, must therefore. have given, by reference, substantially the same -information that could have been given by a bill of particulars; for, of course, it would he the duty of the Court to hold the Attorney General ,to his statement; the examination could be referred to for this purpose, and there is no complaint that the Attorney General went beyond the facts in reference to which the examination was had.
The particulars called for, if furnished, would not have -constituted strictly a part of the information, nor any part
If given, the bill of particulars would no more constitute a part of the record proper than the statement of the Attorney General, and the examination to which it referred. Any of these might be made a part of the record by a bill of exceptions; none of them was a part of the record without it»
It was as easy to discover from the preliminary examination, whether the information was intended to charge . a distinct offense in each count, as it would have been from the particulars called for. And in point of law there is no objection to charging several distinct offenses of the same nature, whether felonies or misdemeanors, in the same indictment. It is only upon the principle of the joinder of different offenses that several counts are allowed at all; though it is true several counts are generally inserted for the purpose of meeting the different phases of evidence of the same, or substantially the same, transaction. In many,, perhaps most cases, it can not be certainly known from the face of the indictment alone whether the several counts refer to entirely distinct transactions, and are intended to charge separate and distinct offenses, or not. In such cases this point is only rendered certain by the statement or opening of the prosecuting counsel, or from the particulars where such are furnished, or by the evidence in the progress of the-trial. But even when it appears clearly in any way that entirely distinct offenses are intended to be charged and
As a general rule, in cases of felony, when it clearly appears, from the indictment or otherwise, that several entirely distinct felonies are intended to be charged and proved, the Court will, in its discretion, either quash or compel the prosecutor to elect: and the same course is sometimes taken in misdemeanors where several offenses in no way connected are charged. But there is nothing technical in the rule; and in the exercise of this discretion the Court will not be governed simply by the question whether several different offenses in point of law are charged and intended to be proved; but mainly, as a general rule, by the consideration whether the trial of these several offenses would involve the proof of substantially different transactions, and thereby tend to confuse'the defendant in his defense, or deprive him of any substantial right. And therefore where the several offenses charged, though distinct in point of law, yet spring out of substantially the same transaction, or are so connected in their facts as to make substantially parts of the same transaction, or connected series of facts, the defendant can not be prejudiced in his defense by the joinder, and the Court will neither quash nor compel an election. Such would seem to be the principle of the general rule to be deduced from the cases. See cases cited, 1 Chitty’s Cr. Law, 253 and 254. and notes; Roscoe’s Cr. Ev. 231, 232 arid 233.
In the present case the information charges apparently several offenses of the same kind; and if the evidence related to several substantially different and distinct trans
It is also objected that the Court erred in admitting in evidence certain account books, proved to have been kept in the office of the defendant during his whole official term, and purporting to show all the receipts and disbursements of cash in said office during such official term, and from which it appeared that certain large sums, claimed to be embezzled, had not been credited to the State. It appeared from the evidence that no part of the books was in the hand writing of the defendant, but that they were kept by the witness, as his deputy, and by other clerks'in the office. These books were objected to, on the ground that it did not appear they were kept by defendant in person.
We do not think this objection can be sustained. • It was the official duty of the Treasurer to' keep such accounts in his office; he might either make the entries himself or by his deputy or clerk; but in either case they were his
A similar objection was made to the admission in evidence of the printed reports (in pamphlet form) purporting to be the annual reports of the State Treasurer for the years 1859 and 1860 (the two years of defendant’s official term), and to be published by authority, and printed by the State printer, and purporting to contain a statement of all the receipts and disbursements for each of said fiscal years; which reports were proved to have been made and published by direction of the defendant from the books of his office: from which reports it appeared that certain sums claimed by the prosecution to have been embezzled by him, had not been charged to the Treasurer (the defendant), and the same report for the year 1860, as printed and bound in the Session Laws of 1861, was also offered, objected to and admitted.
We think the objection to those printed reports quite as unfounded as that made to the books of account.
It was the official duty of the Treasurer to make these annual reports, and to cause them to be printed not only with the laws of the session of 1861 — Comp. L. § 161 — but also to have the same printed as soon as practicable after the close of the fiscal year (December 1st) and ready to
So far as the question of competency is involved, all these printed reports were as much original official documents as the manuscripts from which they were printed would have been under the signature of the defendant. If there was any mistake in the .printing it was competent for the defendant to show it, or any other proper matter of explanation or exculpation.
We now come to the exceptions to the charge. The first point of the charge excepted to relates only to the question whether the Treasurer is included in the section upon which the information is based, and has been disposed of in considering the sufficiency of the information.
The second point of the charge excepted to is, that “it was not necessary that the entire tax of the Detroit and Milwaukee Railway Company should be paid into the Treasury before any part of it could be regarded as paid into the Treasury: but that the payment of each installment as agreed upon by the Treasurer and the Railway Company Would be payment, to the extent of such installment, into the Treasury.”
All the testimony stated in the bill, so far as it bears upon the question (and upon this there seems to have been no conflict), shows that by the arrangement with the Railway Company, the Treasurer, in June, before the tax became due, received of the company six drafts drawn by the Secretary of the Company upon their Receiver, and accepted by him, payable at the MetrojJolitan Bank, in the city of New York, respectively on the first days of August, September, October, November and December, and on the twenty-fifth day of December, 1860 — all after the tax became due. The defendant, as State Treasurer, endorsed these drafts in June, 1860, had them discounted at the Artisans
It is undoubtedly true that the State was not bound by this arrangement, until, or any further than, actual pay-, ments were made. But whether the State had or had not the power to repudiate the whole transaction after payment was actually made, is a question we do not think it necessary to decide. We are satisfied they were not bound to repudiate it; and there certainly is no evidence that they did: and we think it quite clear th.e Treasurer himself could not repudiate it after thus receiving payments* at least to the extent of the payments so made. The money had been obtained by him on the faith of his official character, and in the right of the State: he had no pretence of right — nor does it appear that he made any — to demand or receive it otherwise: it was placed to.
It is further objected to this portion of the charge, that it assumes to decide what the agreement was between the Treasurer and the Railway Company in respect to the mode of payment: whereas that questio.n belonged to the jury. We do not think the charge is fairly open to this objection. The whole charge does not purport to be given, and the merely incidental manner in which the agreement is here alluded to will not authorize us to infer that the question, what the agreement was, had not been left to the jury, or was intended or understood to be taken from them. The evidence tending to show what the agreement was, so far as the exceptions show, was wholly uncontradicted. If the defendant was not satisfied with the mode in which this agreement was thus incidentally alluded to, he should have called the attention of the Court specifically to the point by a request to charge, so as to give the Court a chance to correct it, since the imperfection, if any, was such as would be likely to escape the attention of the Court upon a general exception. But we think the fair understanding of the charge in this respect, is that if the jury should find payment had been made, as the evidence tended to show had been thus agreed upon, the payment of each installment would, in law, constitute a payment to that extent into the Treasury.
The third point or paragraph of the charge excepted to, is in these words: “ That the embezzlement must have been in the county of Ingham. If the proper charge to the Treasurer of the money received would have been made in this county, and that charge was not made, it would be evidence of embezzlement in this county. A denial in that county (Ingham) by the Treasurer of the
It is quite manifest, we think, that the Judge was not here attempting to define the offense of embezzlement, nor to enumerate all the elements necessary to constitute it: but that this portion of the charge relates entirely to the question of the venue of the offense, and what facts it was competent for the jury to consider in connection with that point. And we must not lose sight of the fact' that the bill purports to set out but a part of the charge, and does not purport to set out all the evidence. It would therefore be unreasonable to infer that the Judge had omitted the plain duty of defining the offense, and the elements necessary to constitute it, simply because this, portion of the charge relating to the evidence of venue does not contain such definition and enumeration. The more natural inference is, that this duty had been performed, and in a manner satisfactory to the defendant’s counsel; as' no exception is taken on that ground, but to the charge in reference to the evidence bearing upon the question of venue. We are not therefore satisfied that this portion of the charge ought to be, or was, understood as saying to the jury that the failure to account would, of itself, constitute the embezzlement, or that it would alone be conclusive, or even sufficient to establish that fact; but rather, I think, that it would be evidence which they might consider, with any other evidence in the cause tending to establish that fact; and in this view the charge was entirely unobjectionable: and upon the question of venue I concur entirely with the views expressed by my brother Campbell. A refusal to account necessarily involves an omission as one of its elements; the omission is therefore competent, though other facts may be required to make it equivalent to a refusal.
But the Judge, after mentioning the failure or omission as evidence, immediately adds: “ A denial in this county
What the Judge may have told the jury would be evidence of embezzlement, or would tend to show it to have been committed in that county,, we have no means of knowing. But where a Judge enumerates several facts, and informs the jury that each would be evidence of a certain other fact, it would seem to be a fair inference that he intended the jury to consider such several facts together, and not each independent of the others; much less, that each would, by itself, be sufficient proof — unless the language will admit of no other reasonable construction; because the charge must be understood by the jury as having reference to the collective evidence upon those points in the case before them, and to the combined effect of all. We think it therefore reasonable to conclude, that both clauses or propositions of the charge were intended to be considered together, and not independently of each other, and that they were so understood by the jury. Thus understood the charge would, we think, be clearly right, and sustained by the uniform current of authorities, whether he meant to say it would be sufficient, or only competent, to show the embezzlement in that county.
But had the charge expressly made the failure to
But it is further objected to the whole of this charge on the subject of venue, that proof of a refusal to account,
The fourth and last paragraph of the charge excepted to relates partly to the venue of the offense, and partly to what constitutes the State Treasury. So far as it relates to the first (with the exception of a single consideration which will be presently noticed) it has been sufficiently considered under the preceding paragraph relating to the same subject. So far as it relates to the second — the Treasury— the objection has been fully answered in considering the sufficiency of the information.
But one consideration in reference to venue was strongly urged upon the argument as conclusive against the correctness of this fourth point in the charge. This portion of the charge assumes that it was not necessary the money should have been in the county of Ingham, to warrant the jury in finding that defendant embezzled it in that county. “ How,” (the counsel asks) “ could the money have been embezzled in that county if it was not there at the time?” We have already shown that, under this statute, money is properly regarded as being in the Treasury whenever and wherever it is in the official custody or under the official control and direction of the State Treasurer, for the use of-the State. Any act or series of acts on his part, by which the money should be taken or abstracted from the Treasury, or diverted from the use of the State, with intent to apply or appropriate it to his own use or benefit, would constitute embezzlement. The whole force of this objection,
We think the Court below should proceed to givejudg' ment upon the verdict against the defendant.
As I have come to a different conclusion from my brethren upon the sufficiency of the information, I shall very briefly refer to some of the other points raised, and then give my views upon the questions involved in that. And in this I shall in the main preserve the order of ■argument on the hearing.
It was urged as error that the Court refused to order a bill of particulars of the matters to be relied on by the prosecution. Had this been an indictment instead of an information, the question would have been a very important one. But as an information can only be filed after the party has had an opportunity for a preliminary examina' tion, and as that was had in this case, there can be no occasion for anything more. The examination must be filed- in Court, and no bill of particulars could be more complete. The introduction of any matter not covered by it would I think be good ground of objection and exception. It was so decided in Commonwealth v. Giles, 1 Gray, 466, although in that case the Court were inclined to think the original granting of particulars discretionary —a matter upon which I shall reserve my opinion until a case arises to call for it.
In regard to the account books and printed reports admitted, I think they were competent evidence. It was
The principal question, apart from the sufficiency of the information, is whether the statute was designed to. reach the State Treasurer. That he is an officer employed in the Treasury — in the ordinary acceptation of the term— is plain enough; but it is urged that, from his high position, and the nature of his powers, it is not presumable that any but his own employees were within the mischief to be redressed. The legislation of this State has been sufficiently reviewed by my brother Christiancy, and I shall not repeat his arguments. The ground of exemption from responsibility to the ordinary criminal process, chiefly relied on, was that an impeachment is the appropriate remedy for the official misconduct of high officers of State.
If our system continued to operate in all respects like that of England, perhaps this objection might prevail. But
Our Constitution declares that “ judgment in case of impeachment shall not extend further than removal from office.” This would of course preclude any impeachment of a person out of office, and, if no other remedy were provided, would save a delinquent in office from any penal consequences. But in taking away the power of adequate punishment from the Senate, it is expressly declared that “ the party convicted shall be liable to punishment according to law:’’ Art. 12, §2. Instead therefore of being an argument against extending the statute over State officers,"the change fr'om the English system to our own renders it necessary to make some such provision, in order to accomplish, under our laAVS, what is done in England by impeachment alone. And, where the offender is out of office, no question can arise concerning the priority of prosecutions. Inasmuch as the language of our statute fairly covers the State Treasurer, I think there is no rule of public policy which can reasonably be supposed to exempt him from liability under it.
I am also of opinion that he would be liable under the statute for embezzling any moneys officially received by him, and that the moneys shown upon the trial to have been so
Nor do I think the charge of the Court erroneous in directing the jury that the omission to charge the Treasurer in Ingham county with the moneys received would be evidence of embezzlement in that county; and that a denial of its receipt there would be evidence of embezzlement in that county. When the whole case is examined it is plain the jury could not have understood the charge as construing those acts into conclusive evidence of guilt, and could not have been misled by it in any way. The evident bearing of it was merely upon the venue. And I am very strongly inclined to the opinion, that where a public officer is bound to have his office in a certain place, and to keep his accounts there, an official embezzlement may always be charged in law to have been committed there — at least when it is of money unaccounted for. He is bound to account there, and until he fails to do so there can usually be no proof of embezzlement. The receipt of money may be abroad as well as at home, and yet no one could question his official responsibility to his own State on that account. Such offenses can often have no ascertainable locality; and must to a certain extent be governed by a constructive one.
I have referred to the principal questions arising on the merits, because they have necessarily been decided by my brethren, and I concur in the conclusions at which they have arrived on these points. And it is with much regret that I am compelled to differ upon a question of pleading. But as I deem the defect a substantial one, and depending on rules vital to the administration of justice, I can not
I do not think the information contains any such description of an offense that the defendant was legally called upon to meet it.
The law permitting informations to be filed, declares that “the offenses charged therein shall be stated with the same fullness and precision in matters of substance, as is required in indictments in like cases." “And in all cases a defendant or defendants shall have the same rights, as to all proceedings therein, as he or they would have, if prosecuted for the same offense upon indictment:” — L. 1859, p. 392.
It is not claimed by any one that we have any statute which would make an indictment good for the offense charged here, which would not have been good under the common law rules of pleading. I do not refer to mere matters of form, although they may be such as a party can rely on. Impeachments — which were the common law accusations for such offenses — were not required to be technical; and substantial accuracy is all that I shall consider. That was required in all proceedings and in all courts.
In order to ascertain the necessary elements of an indictment under this statute, we must first determine what constitutes the crime. No crime is defined by the statute itself. But it punishes certain classes of acts which we must look elsewhere to understand. It declares that “ If any officer, clerk, or other person employed in the Treasury of this State, or in the treasury of any county, or in any other public office within this state, shall commit any fraud or embezzlement therein, he shall be punished, <&c.
The term embezzlement does not seem to have had any technical meaning- at common law, and • has been used to signify every kind of stealing. But when used in statutes
There is not a single count in the information which sets forth any facts describing, or constituting the offense which was sought to be proved against the defendant. He is charged with what is rather a conclusion of law than a fact. The charges as set forth are just as applicable to money received from the Central or Southern Railroad as from the Detroit and Milwaukee. They would apply as well to money received from State bonds, or taxes, or land sales, or any other of the numerous sources of State revenue, as from either. They would apply as well to money once accounted for, as to money never entered. In short, if the counts are good, there is not a single dollar ever received by the Treasurer which he
It was urged with much force that it would be impossible to allege every fact with particularity where a defendant must have the only evidence of many matters done in secret. As for example, the precise kind of money stolen, the number and designation of the bills, and the like. How far this difficulty may exempt a prosecutor it is unnecessary now to say, for the defects here are not of that character. The law must in all cases require as. complete a description of the offense as its nature fairly admits of. It makes no great difference, perhaps, if a sum of one thousand dollars is received, of what particular' bills it is conqposed. A fund is not changed by the substitution of one kind of money for another. But if a person is charged with not accounting for money received, it is important for him to know from whom he is alleged to have received it, and for what purpose, because if innocent he may be prepared to overthrow the proof of any such payment.
There is no real difficulty in alleging every substantial fact. No indictment can be found except upon lawful evidence, and no defendant can be properly convicted except upon lawful evidence of every such fact. The chief evidence upon which this conviction was obtained consisted of proof that certain moneys had been paid by the Detroit - and Milwaukee Railway Company to the State Treasurer and never accounted for. And every embezzlement of this description must require similar , proof. Had the charge been designed to cover money accounted for and subsequently embezzled, the proof would have consisted of such admitted amount on hand, and a subsequent deficiency, or an actual subsequent taking or misappropriation; and such other facts as would show the felonious design.
The statutes which have authorized general allegations in criminal pleading have only led to a necessity in many cases of supplying what they ought to allege by a bill of particulars; and they have been very justly condemned.. Over technicality is not to be favored, but substantial accuracy is required by both justice and convenience. As, an information must be as perfect as an indictment in all substantial particulars, and as there has been no statutory-relaxation of the common law which can apply to this, case, it must be determined by the-common law rules.
I think the information fatally defective, as not describing-any crime with reasonable certainty.
I am of opinion therefore that no judgment can properly be entered, and that judgment should therefore be arrested..
Judgment to be entered on the verdict.