167 Ind. 345 | Ind. | 1906
The indictment against appellant contained eleven counts. The fifth was for larceny, and all the others for embezzlement. He was acquitted on the fifth, and convicted on each of the other counts.
It is charged in the first count that the defendant,, as Auditor of State, being then and there charged and intrusted with the collection, receipt and safe-keeping of
Later the practice was extended to certain criminal cases, wherein it was deemed sufficient to charge the offense in general terms, as being a common barritor, a common scold, and the like. 1 Hawkins, Pleas of the Crown (6th ed.), chap. 81, §13. At a more recent date the practice-was, and has continued to be, employed by judges in this country, in jurisdictions where more general and uncertain pleading is permissible, as well as in England, in cases where they have found it necessary to prevent surprise and injustice to the defendant, to require the State to amplify and designate certain subsidiary and evidentiary facts relied upon by the prosecution, and which are not disclosed or indicated by the general language in which the offense is charged. Among the first of such cases was Commonwealth v. Snelling (1834), 15 Pick. 321, 331, which was a prosecution for libel, and in which Shaw, J., says: “The general rule to be extracted from these analogous cases, is, that where, in the course of a suit, from any cause, a party is placed in such a situation that justice cannot be done in the trial, without the aid of the information to be obtained by means of a specification or bill of particulars, the court, in virtue of the general authority to regulate the conduct of trials, has power to direct such information to be seasonably furnished.” Such a bill was’ also required under an indictment charging the defendant with being a common seller of intoxicating liquors on a particular day. Commonwealth v. Giles (1854), 67 Mass. 466.
In Florida it was allowed in a prosecution for embezzlement on an indictment under the following statute: “It
The prosecution is based upon the following statute: “Whoever, being, charged or in any manner intrusted with the collection, receipt, safe-keeping, transfer or disbursement of any money, funds, securities, bonds, choses in
The following other statute (§8477 Burns 1901, Acts 1891, p. 199, §67) is involved: “Every insurance company not organized under the laws of this State, and doing business therein, shall, in the months of January and July of each year, report to the Auditor of State under the oath of the president and secretary the gross amount of all receipts received in the State of Indiana on account of insurance premiums for the six months last preceding, ending on the last day of December and June of each year next preceding, and shall at the time of making such report pay into the treasury of the State the sum- of $3 on every $100 of such receipts, less losses actually paid within the State, and any such insurance company failing or refusing for more than thirty days to render an accurate [account] of its premium receipts as above provided and pay the required tax thereon shall forfeit $100 for each additional day such report and payment shall be delayed, to be recovered in an action in the name of the State of Indiana on the relation of the Auditor of State in any court of competent jurisdiction, and it shall be the duty of the Auditor of State to revoke all authority of any such defaulting company to do business within this State.”
. The question arises upon charge number four, given to the jury of the court’s own motion. The court, after setting forth the above statute-in full, proceeds: “You'will observe that this section of the statute does not in terms
Chief Justice Marshall, in United States v. Wiltberger (1820), 5 Wheat. *76, *96, 5 L. Ed. 37, says: “To determine that a case is within the intention of a statute its language must authorize us to say so. It would be dangerous, indeed, to carry the principle, that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity, or of a kindred character, with those that are enumerated.”
“Penal statutes are to reach no further in meaning than their words; no person is to be made subject to them by implication; and all doubts concerning their interpretation are to preponderate in favor of the accused.” 1 Bishop, Crim. Law, §115. Quoted approvingly in Johns v. State (1862), 19 Ind. 421, 429, 81 Am. Dec. 408. See, also, Bishop, Stat. Crimes (3d ed.), §190e; McClain, Crim. Law, §85; 2 Hawkins, Pleas of the Crown (8th ed.), chap. 18, §16; State v. Meyers (1897), 56 Ohio St. 340, 47 N. E. 138; Moore v. State (1898), 53 Neb. 831, 74 N. W. 319; State v. Bolin (1892), 110 Mo. 209, 19 S. W. 650; State v. Keith (1900), 126 N. C. 1114, 36 S. E. 169; State v. Adamson (1888), 114 Ind. 216. As applied in suits on official bonds, see Bowers v. Fleming (1879), 67 Ind. 541; State v. Flynn (1903), 161 Ind. 554. To illustrate: A statute making a county treasurer who converts the public moneys in his custody guilty of embezzlement cannot be extended to embrace his deputy. State v. Meyers, supra. An officer not charged by law to collect and who has no right to the public money cannot be convicted of embezzling money received under color of his office, though he falsely represented that he was entitled, by virtue of his office, to receive it. State v. Bolin, supra.
Second. Are insurance taxes, in the hands of the auditor, the State’s money? To provide and to secure-a- faith
Third. Is appellant estopped in any element of his defense ? The Attorney-General, with great earnestness, argues that appellant, having employed his official name in
The argument followed to its logical conclusion comes to this: The State as the injured party is not entitled to maintain this prosecution, because the money alleged to have been converted was the money of the insurance companies. However, to secure his punishment, the State has the right to invoke the interposition of estoppel to exclude proof of a fact that would establish the defendant’s innocence of the particular crime for which he is being tried. Surely it may be said that when an act is criminal only when done by a certain class, a defendant on trial for the crime is not estopped from denying that he belongs to the forbidden class. Moore v. State, supra; Bailey v. State (1899), 57 Neb. 706, 77 N. W. 654.
The constitution of Nebraska requires that all fees for services performed by the auditor of state shall be payable
The judgment is therefore reversed, with instructions to grant appellant a new trial.