State v. Dale

8 Or. 229 | Or. | 1880

By the Court,

Boise, J.:

The appellant claims that the indictment in this case does not charge a crime. There was no demurrer filed to the indictment in the circuit court, and the appellant has, in the argument, failed to point out any defect in the indictment except this: It is claimed that it charges the defendant with converting the money and also with having failed to pay it over. Either of these acts would be a crime, and as he is charged with larceny by converting the money and failing to pay it over, we think a charge in this conjunctive form is good; if these acts had been charged in the disjunctive form, that he either converted or failed to pay over the money, the indictment would have been bad. In the case of The State v. Carr, 6 Or. 133, it is decided that “when a statute makes the commission of different acts a crime, and such acts are stated disjunctively in the statute, the indictment may, as a general rule, embrace the whole of such acts in a single count, but it must use the conjunctive and in the indictment when or occurs in the statute. The rule laid down in that case is applicable in this case, and tried by that rule this indictment is not bad for duplicity.

The next point argued as error is that the jury was improperly drawn. It appears from the bill of exceptions that on the eighth day of October, 1879, the day the cause came on to be heard, the court made an order as follows:

“Order for thirty jurors, October 8, 1879.

“It appearing to the court that the number of jurors required by the code to attend the court have not attended, and that the panel is not full, it is ordered that the sheriff of this county summon forthwith, from the body of the county, thirty good and lawful men, having the qualifications of jurors, to serve during the term.”

It also appears that these thirty jurors were summoned pursuant to said order and their names placed in the jury box, ‘ ‘ there being in said box at the time, the n ames of twenty jurors of the required panel, who were in attendance to serve and who were serving as jurors. The defendant, by his attorneys, objected to a jury for the trial of said cause being drawn from said box, .and objected to each and every one of said jurors so drawn; but the court overruled the objection and the jury was drawn and impaneled from said box, to which ruling the defendant excepted.”

The jurors whose names were in the jury box constituted the panel. (Stat. p. 142, secs. 178, 179.) The objection was made to this panel as being illegally made, and the objection to each individual juror was made on the ground that he Avas drawn from this panel, and not on the ground that he was personally disqualified, or that he was biased. We think the objections made to the jurors Avere challenges to the panel and not to the individual jurors. If, when a juror was drawn, the counsel had objected to him for the reason that he Avas not one of the jurors on the regular panel, it Avould present a different question, and Ave might then be called on to decide whether the court had the authority to call jurors before those on the regular panel Avere exhausted. There is nothing in the record showing whether the persons who were drawer as jurors were of the regular jurors or of those summoned by the order of the court. We think that, in order to raise this question, the objection should have been made to the individual juror that he was improperly and illegally drawn or summoned, for it may be that all the jurors who were drawn were of the regular panel..- It is claimed that these names being placed in the jury box made the whole panel illegal, and was such an irregularity as will vitiate the verdict.

By the statute, when, for any reason, there is not a full panel, the court may order the sheriff to summon forthwith, from the body of the county, persons having the qualifications of jurors, to serve during the term. It appears in this case that the number of jurors required by the code did not attend, for there were but twenty regular jurors on the panel. So the court had the power, in part, to makeup the panel. This power has, we think, generally been confined in the circuit courts to making orders to fill up the panel to twenty-four trial jurors, the number provided for in the code.

But the statute does not limit the order to that number in express words. Still, it would seem that the object of the statute wras to enable the court to supply the panel with the number of jurors provided in the code to make a full panel. When, however, this power is exercised by the court, it is for the purpose of making the panel of jurors and the jurors added by the order of the court as much a part of the panel as those who have been regularly drawn from the jury list, and if there be irregularity in making up this panel, still the panel is not the subject of challenge, for challenges to the panel have been abolished. (State v. Fitzhugh, 2 Or. 272.) If the order was void by reason of having directed the summoning of thirty instead of four jurymen, we think that matter could only be taken advantage of by an objection to the individual juror, that he was not summoned as a juror and had no authority to sit.

We think that under section 178 of the code, the court may direct the sheriff to summon any number of jurors from the body of the county for the trial of a particular case, to be used when the regular panel is exhausted, and though we think there was an irregularity in this case, still it does not appear that a substantial right of the defendant was affected by it, for it does not appear but what he was tried by jurors from the regular panel drawn from the jury lists.

After the jury was impaneled the prosecution offered record evidence to show that the defendant was, at the time he converted the money, the sheriff of Yamhill county. This was objected to by the defendant’s counsel for the reason that it was incompetent. We think this evidence was competent to show in what capacity the defendant received and had the money. So, also, we think it was competent for the prosecution to prove the delinquent tax list filed by the sheriff, for this was an exhibit in his favor to show that he had not received all the taxes charged to him, and to charge him with the amounts which he by his entries thereon had charged himself with having collected. We think it was competent to prove, by any competent evidence, what sums the defendant had received at various times as sheriff, in order to show how much money belonging to the county came into his hands. He may have received sums with the intention to account for them and pay them over to the county treasurer. It was proper for the prosecution to show, by items received by him, the amount that came into his hands, and then show how much he paid over, to show the amount of his default; for if he returned a large sum of money belonging to the county, and refused to pay it over according to law, it was some evidence that he had converted it to his own use.

If an agent is accused of embezzling the funds of his employer, it would be competent to show that he received a sum from A. at one time and from B. at another, and that he had at another time converted both sums to his own use. The receipts would be lawful, and the crime consists in the unlawful commission, which may be one act. That is, an agent may be months in collecting the funds of his principle, and when he has a large amount collected, convert the aggregate to his own use at'once.

Again, it is claimed by the appellant’s counsel, that taxes, while in the hands of the sheriff, are not the property of the county. We think this position is not tenable. The sheriff is the agent of the county, and when he receives the taxes and receipts for them, such taxes are the property of his principal, for it is a general rule that where an agent collects money for his principal, the money vests in the principal when received by the agent, according to the maxim, that what one does by his agent he does himself. The state tax due from each county, when paid to the state treasurer by the county treasurer, is the money of the county until paid to the state treasurer; and if destroyed by fire or act of God before being paid over, would be lost by the county; the property in money paid for taxes passes to the county when it is paid by the taxpayer to the sheriff, who is the officer and agent of the county.

It is further contended by the counsel for the appellant that as he collected the money as tax collector and sheriff, and failed to pay it over, he could only have been indebted under section 732 of the statute, which provides that “any sheriff who shall neglect or refuse to pay over all moneys by him collected for taxes, or shall refuse or neglect to make a return of the delinquent taxes of his county as required, * * * shall be liable to be indicted therefor, and upon conviction, may be punished by fine not less than one hundred nor more than one thousand dollars, or by imprisonment not less than six months nor more than six years.” * * * This statute provides for punishing criminal negligence in the sheriff, and appellant might have been indicted under that section for failing to pay over the money by him collected as tax collector, although there was no conversion of the funds and no felonious intent.

Section 559 defines a higher and more heinous offense, and as both statutes were passed by the same session of the legislature, the presumption is that it was the intention of the legislature that both sections should stand. Section 559 defines a crime not mentioned in section 732, when it uses the words: “ And shall in any way convert to his own use.” * * * This makes the conversion of the public funds a crime, and this is the crime charged in the indictment, and for this the appellant could not be punished under section 732. It is true the section makes neglect or refusal to pay over, a crime of equal magnitude as conversiou, and uses tlie same language in defining it as in section 559. If section 732 was field to repeal tfiat part of section 559 wfiicli makes a neglect or refusal to pay over a crime, it would leave tfie remaining portion of tfie section standing, and tfiat remaining portion wfiicli provides against conversion would support tliis indictment. We tfiink it was tfie intention of tfie legislature tfiat both, these sections should stand, and tfiat they are in force, and tfiat a sheriff is embraced in section 559 as much as any other officer, for fie is included in tfie words “any person.”

Tfie points above discussed embrace all tfie important questions raised in tfie case, and as there is no substantial error, tfie judgment of tfie court below should be affirmed.