80 Mo. 108 | Mo. | 1883
Defendant was indicted at the March, term, 1880, of the circuit court of Harrison county. The indictment contains two counts, but, owing to its length, we only incorporate that portion which presents the question we deem it necessary to notice. Omitting the formal parts the first count charges : “ That Samuel R. Cleveland, on the 5th day of March, 1877, being then and there an officer duly elected and qualified under the laws of the State of Missouri, to-wit, being the township trustee of Olay township, it being also known as township sixty-six and sixty-seven, in Harrison county and State of Missouri, * * did unlawfully, feloniously, etc., embezzle and convert to his own use,” etc. The other count contains the same averment. A demurrer to the indictment was interposed by defendant, which was sustained and judgment
Section 41, "Wagner’s Statutes, 459, on which the indictment was based, provides that: “ If any officer, appointed or elected by virtue of the constitution ox this State, or any law thereof, including as well all officers, agents and servants of incorporated towns and cities, as of the State and counties thereof, shall convert to his own use * * It is contended by respondent’s counsel that this section does not embrace township trustees; but on this point it is sufficient to say that in the case of State v. Hays, 78 Mo. 600, the contrary was expressly decided.
Another, and we think a fatal objection to the indictment is, that it does not allege that township organization ha<i been adopted in Harrison county. In the State v. Bench, 68 Mo. 79, it was held that courts cannot take judicial notice of the fact that a county has adopted township organization. If Harrison county, in pursuance of the Township Organization Act, had adopted township organization, then, under the law, there was such an office as township trustee. Otherwise, there was no such office within that county. It is essential that an indictment against an officer, under that section, should distinctly state such facts as will show the existence of the office, unless it be one of which the court will take judicial notice of its existence within the territory in which the party indicted is alleged to have been elected. The fact that the county was under township organization was a material fact, and every material fact of which the court will not take judicial notice must be alleged. In the State v. Hays, supra, that fact was alleged.
The judgment is affirmed.
