*1 874 proceed

was information did filed on which trial could and judgment Barrett properly cannot reversed as was done be cases, only and Madden absent which could error in the trial shown exceptions. bill of If such information filed judg sufficient the proper record shows a valid the circuit court re-sentencing setting ment and there is no occasion for it aside and ground perceive defendant and we can no on which that could properly be done. It will do hold obtain that an against failing to judgment of a reversal him his own default present to the appellate sufficient to enable such court of the record do judgment court determine whether or not the is valid. We duty not consider it of this of its motion to order own seeing circuit clerk to of- up complete transcript. duty send The such transcript the appellant. made filed rests [State Daily, supra; v. Kelsay, Cantrell, supra; supra; State v. v. State Pieski, supra; v. 34 W. Burks, State v. 132 S. State 48.] incomplete Oh the can properly certified here neither record only affirm nor our appears reverse the it to us proper appeal. course is to dismiss the For cases illustrative applicability procedure Kaiser, of such v. supra; v. see State State Daily, supra; Brown, supra; Cantrell, supra; v. State v. State State v. McHenry, supra; supra; (Mo.), Piersol, State v. Fish State 217 S. 19. appeal Fitzsimmons, is dismissed. Westhiies and GC., concur.

PER by Cooley, C., is foregoing opinion adopted CURIAM: The opinion as the judges All court. concur. (2d) 797.

The State v. Claude Dishman, Appellant. S. W. Two, February 23, Division *2 Fred Neale, W. Barrett Newman & Turner for appellant. Assistant Hewitt, R. Attorney-General, and Coveil

Roy McKittricTc, Attorney-General, respondent. by information, filed

FITZSIMMONS, C. Defendant County, with the offense denounced Court Christian in the Circuit (Vol. p. Stat. 4093, Revised Statutes by Section County, he, of Christian Ann.), in that clerk of the Circuit Court a true willfully and render and refused him and fees and earned and unlawfully retained, the same. cause used and withheld that he Douglas County where change of transferred to venue was years guilty and was sentenced to two was found *3 jury. this in accordance with verdict of From penitentiary appeal. an judgment appellant took appear received an does not have authoritative

As Section assign- 1879, in since it was enacted and construction largely upon the interpretation turn of the statute ments of error quote it. any revenue, 1929: “If 4093, collector of Section deeds, court, sheriff, any or any recorder of other clerk of city any thereof, or compensa- this of whose of or salary law, required ac- limited and who is or fixed or tion treasury State, county pay city of the or of for and into the count any officer, and all fees in which he and capacity, office, account of his which in or on shall be his official willfully neglect to such shall the sum allowed excess of moneys, and account keep render a true of the fees refuse to and emol- by him, unlawfully retain, earned so and received or shall uments any same, part thereof, in withhold the excess amount use by law, every offending- him and allowed to such officer so due felony, guilty neglect a pay be deemed and a or refusal to shall moneys proper time, at demand, excess fees or or on over said prima having facie evidence of his shall be deemed embezzled and use; every person same own converted the to his and who be shall provisions pun- under of this section shall convicted exceeding by imprisonment penitentiary years.”- in the ished not five information, grounded upon foregoing statute, charged 1930, appellant in was the Clerk of that the Circuit Court of Chris- compensation tian”'County; law; that his was fixed and limited by required treasury and that he was to account into the of Chris- County moneys, all and in tian fees emoluments received his official capacity; year 1930, appellant, that circuit clerk, as such moneys, that, unlawfully, fees and emoluments willfully ceived and a true feloniously render he and refused to and moneys, and received so earned of the fees and emoluments retained, willfully feloniously him, unlawfully, and that he emoluments, amounts and in the used and withheld fees Harry - from $25 amount .received descriptions as follows: The year Stubblefield was appellant that beyond dispute

The record shows reasonable 1930; that, County in Circuit Court of Christian Clerk Stubblefield, there Harry. the State of Missouri v. action entitled , against the de- judgment costs $25 a of a fine was rendered $118.65; Stubblefield; amounted that the fine and costs fendant payable means of a check paid this that Stubblefield amount his check in clerk; deposited the appellant appellant as circuit that Bank; check County that the deposit account in the Christian official drawn, it bank which was and.that, was collected from the County. This of-Christian paid to the Treasurer $25 fine summary appel- testimony is for the examination sufficient lant’s to the evidence. demurrers

I. Appellant’s demurrers at the close of the State’s case and whole case were to the effect (Sec. that statute 1929) R. S. and the information would sanction guilty a verdict of proof if appellant there had been did not account for the fees office, of his but that neither the statute nor the information support proof a of conviction upon did not account which fine he had collected.

It is to be noted that only any public concerns any county city officer of the State or of *4 salary compensation by whose is fixed or limited law is and who required pay to account for and treasury the Stale, city into county of which he is an officer and all fees and emoluments excess of the fixed or limited sum him. allowed to Flees are a reward wages given recompense to one as a for his labor and trouble for profession. of his County the execution office Hend [Callaway v. erson, 32, 39, 199 24 l. c. S. W. The word “emoluments” 437.] meaning Cyc. has a broader than “fees.” 29 1428, ¥e read in note 72, that term “emoluments” profit the means the “which is annexed office, possession salary, fees, (Bruce perquisites” to the 527, 535, 6 Dickey, 435), v. 116 Ill. N. pecuniary E. in character Wyo. 8 (Reals Smith, 159, 168, 690), 56 v. Pac. and embraces “all receipts proper other officenot included within the term ‘fees’ ” (Arapahoe County Hall, 538, 9 49 App. or ‘commissions’ v. Colo. 372; 110, 128, 711; Hoyt Yansant 96 370, Pac. v. Md. 53 Atl. (U. S.) 10 States, 109, 646, 576). United 135, 348, How. 13 Ed. L. apparent It is that neither the term “fees” nor “emoluments” “fine,” pecuniary punishment by connotes a which is a imposed misdemeanor. person of crime or upon a convicted tribunal

lawful specifically Of officers several mentioned C. J. the 1148.] [25 deeds do 4093, collectors of the revenue and recorders in Section who come many is true officials collect And the same not fines. mentioned “any general description of other officer” within the the officers fact that some of In other words the in the statute. statute, courts, instance sheriffs clerk of contemplated by the for and' terms bearing no their within the collect fines has' inclusion salary class of the statute fixation of of Section 4093. The test is duty pay The salaries of of circuit and the to over fees. clerks by 11786, or limited law. R. S. Circuit fíxéd 1929.] [Sec. courts.áre proceedings for -their- in all civil fees as clerks receive services 1929, and, their serv scheduled in Section by fixed proceedings in criminal fees as Section ices duty statutory of a clerk a circuit court It the county clerk end of each month an to file with the at the itemized charged accruing during month. report all fees which of report paid those fees have been and which- must show duty It is also of a forth paid. have not the circuit clerk to been moneys by during to treasurer all him with collected and-required monthly report in such month be shown of fees accruing. 11814, R. S. A of a cir-' clerk 1929.] [Sec. full-fledged court, therefore, is a member of class of cuit officers applies. whom He meets all tests. In view which take of the action the trial court overruling pass upon appellant’s need not demurrer we separate statute defines two offenses and there contention that the- require should that the have sustained his motion fore trial analysis But for better of the merits of the the State to elect. demurrers, (Sec. 4093) felony makes it a we observe the statute first, any applies, of the class which the section shall if, willfully neglect keep and or refuse to render a true by him, or, moneys, fees and emoluments so earned retain, second, unlawfully if use or withhold the same or he shall and allowed to any part thereof, in excess of the amount due separate offenses, and to fees and him law. These are relate alone emoluments earned and received. separate supported the statute defines offenses

The view 4hat language fixing only plain fact the statutes its but courts, revenue, duties clerks circuit of collectors reports sheriffs, uniformly require these officials to make corders and *5 county county of their fees to the to their to the court and fees ‘ Quite obviously report treasurer. his an officer could not fail to county pay them, reported, fees-to the and as so court fail to to also guilty the treasurer and of but one offense. : charged appellant In the instant' case the- information that

-879 n the of keep' true account' render a and refused' and by him moneys, earned' and received fees and emoluments year charge have sufficiently 1930. If it would specific, that had been gave proof'to the good case been under the statute.' But the State’s produced which records contrary. There'were in court some appellant prepared kept had clerk. an accountant who as circuit And appellant’s report who was and audit from official records appellant report did that witness for the from this State testified pav and case countv fine in the Stubblefield the treasurer thé $734.14 The that for.’ was in these not accounted there 'records State, therefore, offering by evidence what trial court held to be statute, records, appellant’s those of made breach of the drawn from verity moneys, emoluments records a standard of of fees- and guilty of by he was’not earned and received him in 1930. Therefore and emoluments failure to a true account fees of and earned received. The, appellant unlawfully, charged will information also fully retained, moneys; feloniously fees and withheld used and descriptions amount follows: The emoluments in the as amounts $25 If in vear of proof received from Harrv Stubblefield Stubblefield ifrOm Harrv $25 was that the sum-of so''received appellant in for his services was a as had fee. which clerk Stubblefield, inwas excess the case of and'that'-the sum State charge law, the amount due and allowed to proof the'undisputed e'vidence But the. would have been sufficient. made "information $25 of which the State was that the sum (cid:127) 19.29, we con was a fine. mention Al fines. and-not strue it relates alone to fees and statute, though ‘‘moneys,” in one instance uses the word context, -scope word, when with its does not-broaden viewed phrase “moneys, earned so fées and emoluments the statute. is: fe.es, There fines, earned. Only are him.” but not to the demurrefs fore trial erred in overruling evidence. ... Howell, 330; 317 Mo. This court held in State v. S. tliat Section 4086. defined the offense embezzle appellant, moneys by If a clerk of a circuit court. ment the, guilty any the nature of conversion of Stubble- offense in fine, prosecuted he field should have been under Section 408.6. That provides that, “if appointed anv section or elected virtue any law-thereof,, or..any of this Constitution mort administrator, executor,- any gagee, trustee, curator, guardian, or incorporated officer, agent towns, cities and or municipal or servant districts, townships road school or of anv or.member religious benevolent, organization, trade shall convert his .own use, by way whatever, or shall use investment any manner *6 way property merchandise, kind of or shall with or make any portion any moneys secrete official have come to him or them virtue of his or their offices or shall, . . position agent, servant, . . every . . stealing conviction, punished prescribed for the manner embezzled, con- property of the kind or the value the article so n verted, taken secreted." ruling assignments pass out of the our Other of error case under upon the demurrers. The reversed and the cause proceedings may manded for such other further be consistent Cooley Westhues, CC., opinion. with this concur. PER C., foregoing opinion CURIAM: The FitzsimmONS,

adopted opinion judges as the All the court. concur. n Lloyd Plaintiff i Error. 68 S. The State Steenbergen, (2d) 684. February 23, Two, Division Waltner, Jr., Attorney-General, Harry G. McKittrick, Boy Attorney-General, defendant error. Assistant