State v. Bancroft

22 Kan. 170 | Kan. | 1879

Lead Opinion

The opinion of the court was delivered by

Brewer, J.:

At the September term of the district court of Lyon county, Kansas, for the year 1878, the defendant was tried, found guilty, and sentenced to the state penitentiary for the term of five years. ' The information filed against defendant originally contained three counts, the first of which charges:

“That in May, 1872, one E. P. Bancroft was, by the board of directors of the state normal school at Emporia, duly appointed as agent for the sale of said state normal school lands, and continued to be such agent until June 6, 1877; and that during all of said time, by virtue of such appointment as such agent, he was an agent and officer of the state of Kansas, a public corporation; that from day to day during said time said Bancroft, as agent, received, collected, and took into his possession and under his care, in said capacity as agent and officer of the state of Kansas, about. $13,270.14, derived from the sale of certain of said normal school lands particularly described in said information, and which had been sold by said Bancroft as such agent, and which money belonged to the state of Kansas; and that of this sum, Bancroft, on June 6, 1877, at Lyon county, Kansas, unlawfully, fraudulently and feloniously embezzled and converted to his own use the sum of $9,000, without the assent of said state of Kansas, his employer, or of any other ‘person or persons’ thereto lawfully authorized, and that said embezzlement was concealed by Bancroft until February, 1878.” . .

The third count is similar to' the above, except that instead of charging the fraudulent and felonious embezzlement of said moneys, it charges:

“That on said June 6,1877, said Bancroft had in his possession and under his control all of said $13,270.14, except $-, viz., $9,000, after deducting all his stipulated commissions; that on said day the board of regents of said school demanded of Bancroft (they being thereto lawfully authorized by the state of Kansas, his employer in said agency) that he pay over into the state treasury said sum of $9,000, which Bancroft failed, neglected and refused, and still does fail, neglect and refuse to do, and that he never has paid said sum or any part thereof into said treasury; that said sum and no part of it has been lost by means beyond said Bancroft’s control before he had an opportunity to make delivery thereof to his said employer; that his said employer has not and did not permit him to use said moneys or any part thereof; and that Bancroft concealed the fact of his said crime and of his having said moneys until February, 1878.”

The district court required the state to elect as between the first and second counts in the information, and the state elected to proceed upon the first and third counts, and said second count cuts no further figure in the case.

.A motion was then made by defendant, to compel the prosecution to elect upon which of the remaining counts (the.first and the third) it would proceed, and.to strike out the other on the grounds — 1st, that said information as it then stood did not state the facts constituting a public offense, in plain and concise language, without repetition, ■etc.; and 2d, that said counts were improperly joined. The ■motion was overruled by the court, and defendant excepted.

Defendant then interposed a motion to strike one or the other of said counts from said information, which was' also ■denied, and defendant excepted.

Then followed defendant’s motion to quash each of said counts, on the ground that neither of them stated facts sufficient to constitute a public offense; and that neither count was direct and certain as to the offense charged. This was .also overruled, and an exception duly taken by the defendant.

Thereupon said defendant filed his plea in abatement, duly •verified, alleging that he had never had any preliminary ex-.amiuation for the pretended offense charged, or attempted to be charged, in each of said counts, or in any form waived the same, etc. To this plea the state interposed a general denial. The issue thus joined was tried before a jury, verdict was ■rendered for the state, and judgment for the state was entered thereon, after the motion of defendant for a new trial had been overruled and exception taken.

The defendant standing mute and refusing to plead, the ■court ordered a plea of not guilty to be entered for him as to •each count.

The jury found the defendant guilty, of embezzlement as charged in each of said counts, and found the amount embezzled under said first count to be $3,436.18, and under the thii’d count to be $1,987.24; and thereupon the court adr judged that said Bancroft is guilty of embezzlement as found in said verdict, and that he be taken hence to the penitentiary of the state of Kansas, and there confined at hard labor for the full term of five years, etc.

The statute under which this prosecution was had is the .amendment made in 1873 of §88 of the crimes act, Laws 1873, p. 177, §1, which reads:

“ If any clerk, apprentice, or servant of any private person, •or of any copartnership, except clerks, apprentices and servants within the age of sixteen years, or if any officer, agent, ¡clerk or servant of any incorporation, or any person employed in such capacity, shall embezzle or convert to his own use,, or shall take, make way with, or secrete with intent to convert to his own use, without the assent of his employer, any goods, rights in action, or valuable security or effects whatsoever belonging to any person, copartnership or corporation, which shall have come into his possession or under his care by virtue of such employment or office, he shall, upon conviction thereof, be punished in the manner prescribed by law for stealing property of the kind or value of the articles so-embezzled, taken or secreted; or if any agent shall neglect or refuse to deliver to his employer or employers, on demand, any money, promissory notes, evidences of debt, or other-property which may have come into his possession by virtue of such employment, after deducting his fees as attorney,, charges as agent, or stipulated commission for making collection of such money, unless the same shall have been lost-by means beyond his control before he had opportunity to-make delivery thereof to his employer or employers, or the-employer or employers have permitted him to use the same, he shall, upon conviction thereof, be punished in the manner-, provided in this section for unlawfully converting such money or other property to his own use.”

It is evident that the first count was framed under the first part of this section, and the third under the latter part, and that upon this section the principal question is whether the-state is an incorporation within the meaning of that term as-here used. It is conceded that there is a certain sense in which a state is a corporation, and properly so denominated.. But the contention is that it is not so in the ordinary legal sense of the term, and even if it were, the legislature has by its express definitions excluded it from the scope of the term as used in the statutes. An examination of the authorities will show in what sense the state is called a corporation, and to them we turn. In Angelí & Ames on Corporations, § 15,. it is said:

“Nations or states are denominated by publicists bodies-politic, and are said to have their affairs and interests, and to deliberate and resolve, in common. They thus become as-moral persons, having an understanding and will peculiar to themselves, and are susceptible of obligations and laws. In this extensive sense the United States may be termed a corporation. They are a collective, indivisible body, which can act and be seen only-in the acts of those who administer the affairs of the government, and also their agents duly appointed. So it may be said of each state singly; so the king of England is a corporation, and so is parliament.”'

So in Dillon on Municipal Corporations, vol. 1, § 14:

“Although not styled such, each one of the United States, in its organized political capacity, is in effect a public corporation. Corporations, however, as the term is commonly used, do not include states, but only derivative creations owing their existence and powers to the state, acting through its legislative department.- Like corporations, however, a state, as it can make contracts and suffer wrong, so it may for this reason, and without express provisions, maintain, in its corporate name, actions to enforce its rights and redress its injuries.”

Thus, according to Angelí & Ames, it is only in an extensive sense of the term that the state may be called a corporation, and according to Dillon the term as commonly used does not include a state. So, while a state is recognized as possessing corporate character so far as to give it status as a plaintiff in-the courts of a sister state, (Woodworth v. Janes, 2 Johns. Cases, 417; Delafield v. Illinois, 2 Hill, N. Y., 159; Indiana v. Noram, 6 Hill, N. Y., 33,) or in its own courts, (State v. Delesdenier, 7 Tex. 76,) yet it seems to be so recognized only in a limited sense, and for certain purposes. It is not broadly and generally called a corporation, or classed with such creations of the law. Again, in so far as a state is a corporation, it is also a person. “Corporations are artificial persons — bodies politic, possessing some of the attributes of natural persons, and are subject to many of the obligations and duties imposed by law upon individuals.” But it has never been held that because, in this sense, a corporation is a person, that when the word “person” is found in a statute it will be construed to mean or embrace a state. Its meaning may be extended by express definition so as to include the sovereignty, but unless so extended it will not be so considered; and the reason is, that “in construing a statute, words are to be taken in their ordinary sense, unless, from a consideration of the whole act, it appears that a different meaning was intended.” As an example of this, we refer to § 314 of the crimes act, which provides: “When the term ‘person’ is used in this act to designate the party whose property may be the subject of any offense, such term shall be construed to include the United States, this state,” &c. See In re Fox, 52 N. Y. 534, et seq.; United States v. Fox, 94 U. S. 320, 321.

These general considerations indicate that the state is not included within the terms “incorporation” and “corporation,” as used in this section, for while it is true of all statutes, it is especially true of penal statutes, that no strained or exceptional interpretation is to be given to their • language for the sake of including offenses not apparently within the purpose of the legislature in their enactment. We must, as a rule, keep within the ordinary meaning of words and phrases in construing criminal statutes, for otherwise the courts will be making those acts offenses which the law-making power has not declared to be such.

But we are not left to mere general considerations and rules of interpretation. The legislature has in terms defined the meaning of the word “corporation,” and such definition must be accepted as conclusive. It was this definition which justified this court in the case of The State v. Smith, 13 Kas. 292, in holding that a county treasurer was included within the section — a conclusion reached with some hesitation, and one not altogether in harmony with decisions elsewhere. This definition, which was broad enough to make the term “corporation” include a county, as plainly makes it exclude the state. It is a definition given by the same legislature which enacted the original § 88, and must be taken as its understanding of the scope of the word as it is used in said section.

In ch. 23 of the General Statutes it is enacted:

“Sec. 1. Corporations are either — first, public; or second, private.

“Sec. 2. A public corporation is one that has for its object the government of a portion of the state.”

This first section is comprehensive: it includes all corporations, and divides them into two classes. There can be no pretense that the state is included within the second class. In np sense is it a private corporation, neither does it come within the definition of the first class. “The government of a portion of the state” is the language. Now the greater may sometimes include the less, but never the less the greater. An organization whose object is the government of the state as a whole, is not included within a term which is limited to those organizations whose object is the government of only a portion of the state. In other words, the legislature has expressly said that in using the term “ public corporation,” it means only those limited and local organizations, such as counties, cities, etc., to which it intrusts the government of portions of the state. With such an express . affirmation of its intent in the use of the term, it would be simply an usurpation for the courts to hold that the term includes something more.

Supporting this conclusion, if it needs any support, it may be remarked that the same legislature made provision for the punishment of any embezzlement by the state treasurer, defining the offense and imposing a penalty therefor. (Gen. Stat., p. 983, § 56.)

1'acOTpor«t?on within gl, of i873Laws Again it had, as already noticed, expressly included within the word “person” the United States, this state, etc. Yet when it used this word in said § 88, it chose to limit it by prefixing the term “private,” as though it would not extend the scope of that section to the United States or the state. It was an unnecessary prefix, unless it intended a limitation which would exclude that which it is now contended should be included. It adds no force to the statute except by way of limitation, and it would be strange if the legislature had taken pains to limit one descriptive term, broad enough to include the state but for such limitation, and at the same time had intended that another descriptive term used in the same section not generally broad enough to include the state and which it had so defined as to exclude the state, should, without any intimation of its being used with an extended meaning, be so construed as to include the state. The conclusion then to which we are forced is, that the state is not included within the terms incorporation and corporation as used in this section, and therefore that the , 4 7 coun^ m information states no offense under the statutes. This avoids the necessity of examining many of the questions presented and discussed by counsel.

2.sec. i, ch.83, Laws of 1873, construed. ascertained,11 governs. The third count, as we have seen, was framed under the latter portion of the section, and it is insisted that its language is broad enough to include an agent of the state. We quote from the brief of counsel: “The term ‘agent/ as there used, is not dimited, nor is it attempted to be limited, by any words, but is expanded to the fullest extent of our language* Any agent, as there used, means every kind of an agent, and an agent of anybody or everybody who is capable of being represented by an agent. The state can be represented in no other way than by agents — therefore an agent of the state must be included in the words any agent, as there used. The third count charges that the defendant was acting as agent, etc. This is sufficient.” It must be conceded that the expression, “any agent,” is broad enough to include an officer or .agent of the state, though the words . . ° agent and employer are not apt or ordinary to express the relations of a public officer and the state. We had occasion to consider the force of the term employer, as used in this section, in the case of The State v. Smith, supra, and held that its use was not so inconsistent with the relations of an officer to the public as to prevent the application of the statute to public officers. It follows, therefore, that if the latter part of this section stood as a separate and independent act, its language would properly be held to include an officer or agent of that state, and the third count would have to be sustained. What effect, then, does its position as a part of a section have upon it, and how far do its relations to the entire section limit and control its extent? The cardinal canon of construction is, that the intent, when ascertained, governs; so that all mere rules . it n • of interpretation are subordinate, bumming up his remarks on this, Chancellor Kent says: “It will be sufficient to observe generally that the great object of the maxims of interpretation is, to discover the true intention of the law; and whenever that intention can be indubitably ascertained, and it be not a violation of constitutional right, the courts are bound to obey it, whatever may be their opinion of its wisdom or policy.” (1 Kent’s Com. 468.)

The question is one of difficulty. Evidently the words “any agent” mean exactly “any agent,” and include every agent, whether of an individual, a partnership, a corporation or a state, who does the acts thereafter named, or they mean only such agents as have been previously enumerated in the section. Either construction is exposed to objections which are not easily answered. In support of the latter construction, it may be said that it is a rule of interpretation that, “where particular words are followed by general ones, the latter are to be held as applying to persons and things of the same kind with those which precede.” (Potter’s Dwarris on Statutes, p. 236, and cases cited in note.) Having once indicated by the particular words in respect to whom or what it is legislating, further particularity is unnecessary, and general terms and phrases may be used without extending the legislation to any other person or things.

Again, it may be said that this section in the Laws of 1873 is an amendment of § 88 of the crimes act, the amendment consisting in the addition of this latter part under which the third count is framed; and the fact that it is an amendment, indicates its purpose and extent. It is not to be considered as an independent act, creating, defining and punishing an offense. Words and sentences added to a section by way of amendment are added to limit, extend or qualify that which is already in the section. We must look to the original section and compare it with the amendment, to determine what error or omission the latter was intended to remedy and that interprets its scope and effect. In a. section defining and prescribing a penalty for a crime, an amendment may be in respect to the person, the offense, the evidence, or the punishment. It may enlarge or limit the number of persons capable of committing the offense; it may define the offense more fully, or include or exclude certain acts; it may declare the effect as evidence of any act or word; and it may increase or diminish the penalty. Now when the obvious purpose of the amendment is a change in any one of these respects, the language must be construed so as to carry into effect that purpose, and not in either a broader or more-limited sense than it would receive in an independent act. Thus in the case at bar, if the obvious purpose was to enlarge or limit the penalty, that purpose interprets the language and-the use of general phrases and expressions should not be construed as extending the offense or increasing the number of persons capable of committing it. If the amendment of 1873 had read that, “All persons guilty of embezzling, converting to their own use, or secreting with intent to convert,” &c., “shall be punished by imprisonment and hard labor not less than five years,” &c., it would be evident that the thought of the legislature was on the penalty, and that it was not the-intent to define the offense or include within the statute any other acts or persons than before. Now an examination of the amendment actually made indicates that the purpose was to enlarge the offense, by extending it to the case of an improper failure or refusal of an agent to pay or deliver to his employer on demand moneys, property, etc. Is not that all that the amendment intended? And should any general words be held to extend the statute to agents generally, or-should they not rather be construed as referring to such agents only as have been previously enumerated? On the other hand, it may be said that the intent is to be gathered from the words; that if the legislature had intended to limit, this provision to the agents previously enumerated, it would naturally have said “any such agent,” and that, failing to use that or some similar term, and in fact using the comprehensive expression “any agent,” it intended to include every agent. Again, the rule concerning the limitation of general by prior particular words is not of absolute, controlling force, but always yields to the manifest intent. Indeed, does the rule extend to cases where in one clause certain acts and conduct are imputed to a particular class of persons, and in a subsequent clause different acts and conduct to a more comprehensive class, or is it not limited to cases where the general follow the particular words in the same clause as mere additional terms of description, and where the same acts and conduct are ascribed to, or affirmed of all ? Further, an amendment may extend the original section in all respects, both as to persons, offense, evidence and penalty, and unless this amendment extends to persons as well as offense, it has but a limited and narrow application. Obviously the amendment was intended to reach such agents as attorneys, collecting agents, etc., who collect money for their principals, and to make their improper failure to pay on demand a crime. Now if no persons are includéd save those enumerated in the first part of the section, it would seem that only the attorneys or collecting agents of corporations were reached, for within the terms “clerk, apprentice or servant,” (which are the only terms used in that part of the section with reference to any other agents than those of corporations,) an attorney or collecting agent would not properly fall. Can it be that the legislature intended by this amendment to reach only the agents of corporations? And again, if a mere enlargement of the offense was alone intended, why not, as would be natural, the statement of the act to be prohibited injected into the body of the original section to run along with the other acts prohibited, after the persons and before the penalty, instead of being a complete and separate statement both as to persons, offense and penalty?

The conclusions to which we have now come are with the considerations last named. "While this stands as an amendment of a section, it is complete in itself. It names the persons, describes the offense, and affixes the penalty. It was •doubtless aimed at lawyers and such other collecting agents as are not liable to even a civil action until after demand, and its language was purposely made general, to include all such agents, for whomsoever they were acting. We make this ■extract from 'the argument of counsel for appellant, which, while directed to another question, tends to support the conclusions above reached:

“The two offenses charged are in law just as distinct as if they were covered by separate sections of the statute; the fact that they appear in one section don’t alter their legal character. It is absolutely impossible for a person guilty of .embezzlement of funds under the first clause to be guilty of a criminal refusal to pay over funds collected, as provided for in the second. The second clause was enacted for the purpose of reaching a class of individuals who were not and could not be punished under the first clause: a class of collecting agents who were not even civilly liable until after demand. It is true that a demand and refusal may be evidence of an embezzlement under the first clause, but it would not necessarily constitute the embezzlement; and then it will not ■be supposed that, in enacting this second clause, the legislature was simply putting in a statute of evidence in embezzlement cases. If, by the amendment of 1873, the legislature did not provide for two distinct felonies, and felonies that, so far as the same individual and the same funds are concerned, are as to each other inconsistent and repugnant, then we have in this amendment an indirect attempt to legislate out of existence the statute of limitations so far as embezzlements are concerned, for the addition clearly amounts to this and no more: ‘That whenever any agent, officer or servant mentioned in § 88, ch. 31, shall have embezzled any such moneys mentioned in said section, and shall neglect or refuse to deliver to his employer, on demand, the same, unless the same shall have been lost by means beyond his control,’ &c., ‘or his employer has permitted him to use the same, he shall upon conviction,’ &c. If this second clause does not make the things therein mentioned a crime, and the same did constitute a crime under the first clause, then it is an absurdity; or else the legislature simply meant to say, that if any one has at any time been guilty of embezzlement under the first clause, he is to be convicted and punished, even though prosecution for this crime is barred by the statute of limitations, provided the demand mentioned is made and the other things ■stated exist; and we cannot suppose the legislature intended any such thing.”

As the charge against the defendant falls solely within the last part of this section, it is unnecessary to stop here to consider the questions suggested by counsel. There is no renewing of an old crime by a late demand. The defendant, if ■guilty of any crime under the statutes, is guilty of the crime •of improperly refusing to pay over, on demand, moneys belonging to his employer.

As the jury specially found the defendant guilty under the third count, and as the punishment imposed was no greater than that warranted by such count, we may ignore all matters save those arising under this as a single and separate charge.

Among the questions deserving notice after passing the •construction of the statute, is whether the defendant was in fact an agent. It is claimed that all his authority to act ceased in 1873, and that whatever he did thereafter was done by him upon an unwarranted assumption of authority; that his acts did not bind the state, that the money he received was received by one having no authority to receive it, and that whatever may be the nature of the wrong done to the parties paying, he is gui-lty of no embezzlement of the state’s moneys. This claim is based, not upon any alleged revocation of his authority by any board of directors or regents, but as the necessary result of legislative action. It may be an important question, not only in this case, but also in controversies which may hereafter arise between the state and parties purchasing and receiving contracts of sale from the defendant. For if the defendant was not legally the agent of the state after 1873, then the parties purchasing from him as such agent can have no legal claim on the state for the fulfillment of their contracts or credits for moneys paid to him. A brief reference:to the legislation on the matter will be necessary. These aré the acts:

1st. An act in 1863, establishing and locating the normal school, and endowing it with the salt-spring lands. (Gen, Stat., p. 582.)

2d. An act in 1864, organizing the school, and placing it under the direction of a board of directors. (Gen. Stat., p. 589.) This act contains in detail many provisions for the administration of the school, but says nothing in reference to the-sale of the school lands.

3d. An act in 1866 (Gen. Stat., p.593), and a substitute-therefor in 1872 (Laws 1872, p. 378), providing for the sale of the lands. This act makes no provision for the administration of the school, except that it declares that the interest on the proceeds shall be applied to the maintenance and support of the school under the direction of the directors, but does make full and complete provision for the sale of the-lands, authorizes the directors to sell, and to appoint an agent, with power to make contracts and receive money.

4th. An act in 1873 (Laws 1873, p. 251), placing the government of the school in a board of regents. This was a. general act in reference to all the state institutions of learning, and assigns the government of each to a separate board of regents. It does not attempt to prescribe any detail in reference to their management, but simply changes the governing body, reducing its numbers, and changing its name. It empowers it as a “board of control, with full and complete powers to adopt and enforce all necessary rules and regulations required under the law for the government of said institution.” It makes no special reference to the sale of the-lands. It does not by name repeal any prior act, but in. terms repeals all “parts of acts” in conflict with its provisions.

5th. An act in 1877 (Laws 1877, p.236), changing the number and term of the regents. This act in terms directs the regents to sell the lands under the provisions of the law of 1872, simply reducing the minimum price. It impliedly, therefore, recognizes the act of 1872 as still subsisting and in force. These are all which bear upon the present question.

4.Agency not revoked. It is evident, therefore, that the act of 1872 was never in terms repealed. If repealed at all, it has been only by implication, but such repeals are not favored, and can only be sustained when the two acts are repugnant and cannot both have force and effect, or where the latter is manifestly an entire substitute for the former. (1 Kent’s Com., p. 467, and cases cited in note.) Either one of two results seems to us properly to follow: either that the board of regents took the place of the board of directors in the mere administration of the school, leaving the board of directors with the power to continue in the sale of the land, or the board of regents took the place of the board of directors in all matters relating to the school, including both its properties and its administration. The latter, from the* subsequent legislation of 1877, would seem to have been the understanding of the legislature. And the management of not only the normal school, but also of the agricultural college, whose governing board was also prescribed in the same act of 1873, seems to have been conducted upon this understanding. And this is a case where the maxim that that which is within the intent of the statute is within the statute, may well have force; though it matters not which may be the correct interpretation so far as the powers, duties and responsibilities of the defendant are concerned. In either case, he was the state’s agent, with power to se^ anc^ receive pay, and under obligation to pay receip(¡s ]ess hjs commission into the state treasury. Certainly, his plea that though he acted as agent, sold the land as agent, and collected money as agent, and then appropriated it to his own use, yet he was not in fact and in.law an agent, is not one calling for any forced or strained construction of the statutes.

' form ofemenfc’ Another matter of moment is that of demand. Under this third count the gist of the crime is the refusal to pay upon demand; a mere neglect to pay when due is insufficient; and a demand must be proved before any conviction can be had. Such demand must also be in the line of authority, and not from a mere stranger. So far we agree with counsel for appellant, but we cannot concur in other matters they press in connection with the question of demand. It need not be by the party to whom the money was actually payable, the state treasurer. The defendant held his position as agent by appointment of the board, and was at all times subject to their control and direction. To their care was given the matter of the sale of the lands, and a demand by them, or a committee duly appointed therefor, was a demand in ^ie ^ne authority, aud not a mere intermeddling by a stranger. Neither is it necessary that the authority granted to a committee be an express direction to make a formal demand, nor that a copy of such direction be formally presented; nor that the notification actually given by the committee be in express words a demand for the payment óf the money. It must be borne in mind that this is not a case where a right to retain and use the money existed until demand, in which case more formality and precision might be necessary to change a rightful into a wrongful holding; that the defendant was all the time derelict in duty in withholding payment; and in such a case anything which amounts to a notification by one lawfully authorized, that he is expected now to perform that neglected duty, is a sufficient demand. In the language of the instructions, which we quote with approbation, in order to constitute a legal demand no particular words are necessary to be used. If the party making the demand use language that plainly indicates to the party upon whom the demand is to be made what he is required to do, this would constitute a legal demand. And turning to the testimony, we find ample to sustain a finding of a demand. Indeed, while counsel have placed much stress upon this, none of the questions we notice in this opinion seem to us of so little doubt or difficulty.

The resolutions upon which the committee was appointed and acted, and both of which were passed at the same meeting of the board, are as follows:

“On motion of Mr. Crichton, it was ordered by the board that a committee of two be appointed to report at the regular meeting in June next the amount of normal school lands sold; the condition of the funds derived from lands already sold; to make, a survey of said lands, if practicable; and report generally upon the propriety of further sale of said lands, and upon any other matter germane to the subject.

“Resolved, That the agent of the board of regents for the sale of lands of state normal school be required to deposit all moneys received by him for the sale of said lands into the state treasury as the law provides, as soon as the amount thereof shall be ascertained by the committee to be appointed this day.”

It is not pretended that any copy of these resolutions was ever presented to defendant, or that he ever saw them; but in pursuance thereof, the committee had two interviews with him in relation to the matter, at an interval of nearly a year, in the first of which he gave them a statement of lands sold and moneys received, which he said was complete, and paid over the money; at the second, a much larger sum was named, but no payment made. We make the following extracts from the testimony of one of the committee, James H. Crichton, as to what transpired at the first interview:

“I and Dr. Wright were appointed a committee to call upon Bancroft, and demand settlement and account of his doings as agent. About the 18th of April, 1877, they went to B.’s office, and asked a statement óf the laud sold and money received, and all his transactions. He gave us a small slip of letter paper, which he said contained a list of all lands sold and money received. . . . The total amount of principal he said he had in his hands was $2,148.90, interest $621.33, in all $2,770.23, which amount we received from him then and there. I asked him if that was a full account of his transactions up to that time. He said it was. I asked if he kept any book entry of sales, showing the time of the sale, the land sold, and the purchase price. He said ‘No.’ I demanded of him, on behalf of the board, all papers, etc., pertaining to these lands in his possession. He handed me a small account book, together with a roll of legal cap upon which had been written a description of the land and the appraisement of Prescott. I asked him for a full report, and he had this [referring to above slip of paper] prepared, and said he had that amount and would turn it over. I asked him again why in the name of sense he did not put the money in the treasury.”

Dr. Wright, the other member of the committee, also testified :

“I cannot state the words; the substance was that Mr. Crichton made a demand of Bancroft, asking him for the money, stating that we called to get the amount of money for the land sold.”

And in reference to the second interview, Crichton testified that he said to defendant:

“I understand you have sent in another report. He said, ‘Yes.’ I asked him if he had made a clear report this time. Pie said he had, of all his doings. I remarked, that ‘from that report you owe the state $8,000.’ He said yes — that he had that much of the school funds. I remarked, ‘I suppose you are ready to pay the amount?’ or language to that effect. He said no — he was not. I remarked that the money was what we most needed. He said he was unready to pay. I asked him what he had done with the money. He said he did not know — he had used it for different things.”

Further than this, the defendant had an interview with the board after these interviews with the committee, with reference to his deficiency and a settlement of the sáme, in which he stated his resources, and that he could pay the interest on the deficiency during the year, and the principal in two years.

We see no reason to doubt the sufficiency of the testimony in this respect to sustain the verdict of the jury.

6'chai°ioiige not error in case stated. A final matter that we shall notice is the competency of one of the jurors, W. O. Ferguson. On his voir dire this juror testified that he had neither formed nor expressed any opinion as to the guilt or innocence of defendant, and was without bias or prejudice. At the same time, two witnesses were called who testified that they heard him say that he was afraid defendant had got himself into a bad scrape, and had “got his foot into it,” or words to that effect. On reexamination the juror declared he had no recollection of any such ■conversation as stated by these witnesses. A challenge was then overruled, and he served as a juror. On a motion for a new trial, severdl witnesses testified to hearing similar remarks frpm the juror. Eer- ° J guson was recalled, and denied these statements; testified that he had not been on speaking terms with one or two of the witnesses, and had not been present at the times .and places named by others. Some of the testimony on this motion was given by affidavit and some orally. The court ■overruled the motion, and this is alleged as error.

Upon this we' remark, that if this question hinged solely upon oral testimony we should with little hesitation sustain the ruling of the district court as its decision upon a mere ■question of fact. It was, however, presented principally upon affidavits and only partially upon oral testimony, so that it.comes before us in a different attitude. We may remark further, that if the case was one principally of fact, and the .question was whether the defendant did the acts •charged against him, especially if that question was a doubtful one, we should have expected that the district court would have sustained the motion and given the defendant the benefit of the doubt.

But where, as in the case at bar, the questions are principally questions of law, and the. acts and conduct of the defendant as admitted and testified to by himself taken in conjunction with undisputed and unquestioned facts, make out a strong ease of guilt, and 'the district court who saw the juror and heard the testimony, both oral and written, sustains his qualifications, it does not seem to us that substantial justice requires that the judgment be reversed and the case remanded for a new trial. We frankly admit our hesitation in arriving at this conclusion, and only the peculiar character ■of' the case and the questions involved in and presented at the trial, incline us to the opinion that the substantial rights •of the defendant have not been invaded by this ruling.

Many other questions have been presented, and discussed by counsel with great ability. We have endeavored to notice those matters which struck us as most important and difficult. We have examined the others, and see nothing which would seem to us to justify a reversal. Indeed, reading the story of the defendant’s acts and conduct as told by himself, his dereliction of duty presents a crime which no-smoothness of words or politeness of language can obliterate- or conceal.

The judgment will be affirmed.

Valentine, J., concurring.

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Concurrence Opinion

Horton, C. J.,

concurring specially as follows:

I concur in the decision in this case, but if the appellant had not gone upon the witness stand and given the evidence-I find from him in the record, I would have favored a reversal of the judgment, and the granting of a new trial on-account of the manner in which the jury was constituted. I consider, however, his testimony a detailed statement or confession of guilt; that is, the evidence given by him involves-guilt under the law. Therefore, under the circumstances, the errors of the trial court were not substantial ones — at least,, not sufficiently so to be prejudicial to the rights of the accused.