Sias v. Territory of Arizona

89 P. 539 | Ariz. | 1907

CAMPBELL, J.

— Appellant was indicted and convicted for the crime of embezzlement. The only question before us for determination is the sufficiency of the indictment, which, in substance, charges that the defendant, while deputy of the sheriff of Yavapai county, received and had in his possession and under his control, by virtue of his trust as such deputy, and not otherwise, the sum of $997.90, which money was then and there the personal property of Joseph I. Roberts, sheriff of Yavapai county, whose deputy he was, and that, while so • having in his possession and under his control such money, he fraudulently appropriated it to his own use. This indictment was drawn to charge an offense under section 458 of the Penal Code. That section provides: “Every officer of this territory or of any county, city, or other municipal corporation or subdivision thereof, and every deputy, clerk or servant of any such officer, and every officer, director, trustee, clerk, servant, or agent of any association, society or corporation (public or private) who fraudulently appropriates to any use or purpose not in the due and lawful execution of his trust, any property which he has in his possession or under his control by virtue of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, is guilty of embezzlement. ’ ’

It is first contended by the appellant that the indictment is not direct and certain, in that it is inconsistent in its allegations as to the ownership of the money charged to have been embezzled. It is insisted that, by force of certain statutory provisions, all moneys received by public officers in their official capacities become and are public moneys, and therefore that, by charging in the indictment that the defendant received the money in his official capacity as deputy sheriff, the ownership of it is thereby alleged to be in the county, which, it is claimed, is contradictory of the allegation of the ownership of the sheriff. Sheriffs collect money due counties for license taxes, and also receive money upon executions. Without deciding the point, we may concede, for the purposes of this ease, that all of such money, when collected, becomes by force of the statute public money. The sheriff must account to the county for the license taxes, and to the judgment creditor for money collected upon execution. His deputies are accountable to him, and he is responsible for their acts. He has such a special property in the moneys collected by them, although they be public moneys, as will support an allegation of the ownership of the money in him in an indictment for larceny or embezzlement. The fact that, in alleging the fiduciary capacity in which the defendant received the money, it is thereby disclosed that the sheriff’s ownership was a qualified one, does not in any way mislead or prejudice the defendant.

Appellant further complains that the indictment is not direct and certain in its allegations that Roberts was sheriff at the time the money is alleged to have been embezzled.' It recites the election and qualification of Roberts as sheriff, and the appointment and qualification of the defendant as the deputy of Roberts, and that he was such deputy at the time lie received and embezzled tbe money. We think the allegations are sufficient.

No error appearing, the judgment of the district court is affirmed.

KENT, C. J., and DOAN and NAVE, JJ., concur.