State v. EnsleyState v. Ensley
Lead Opinion
Aрpellee, a former treasurer of Marion county, was charged by indictment with the crime of embezzlement, under §2284 Burns 1908, Acts 1905 p. 584, §391.
' The indictment, omitting caption and signature, is as follows: “The grand jurors for the connty of Marion and State of Indiana, upon their oaths present that on the — day of November, 1904, Oliver P. Ensley was duly elected to the office of treasurer of the connty of Marion in the State of Indiana for the term of two years, which said term commenced on the 1st day of January, 1906, and ended on the 31st day of December, 1907. That said Oliver P. Ensley
The defendant filed a motion to quash the indictment, for the alleged reasons that it did not charge an offense, because it failed to aver a demand, and because the ownership of the money was not sufficiently averred. The lower court sustained the motion to quash, because, as we are informed by appellee’s brief, no demand was averred. This appeal, prosecuted by the State, is based on the alleged error of the court in sustaining this motion.
The indictment was returned under §391 of an act concerning public offensеs, approved March 10,1905 (Acts 1905 p. 584, §2284 Bums 1908). This was a substantial reenactment of an act approved March 5, 1883 (Acts 1883 p. 106, §2021 Burns 1901). Section 391 of the act of 1905, supra, is as follows: “It shall be the duty of each clerk of the circuit court, sheriff and treasurer of each county in this State, and of every other county, state, township, city or town officer in this State receiving money in his official capacity, at the expiration of his term of office, to pay over to his successor in office all moneys of every description, to whomsoever due, remaining in his hands at the expiration of such term, taking the receipt of such successor therefor; and such successor and his sureties shall be liable therefor on his official bond, as if the same had been originally collected by him; and any clerk, treasurer, sheriff or other such county, state, township, city or town officer, so failing to so pay over such moneys, and any such successor to any clerk, treasurer, sheriff or other such officer who shall fail to' pay over any such moneys to parties entitled to receive the same, when called on to do so, shall be deemed guilty of embezzlement, and, on conviction, shall be fined in any sum not exceeding one thousand dollars, and be imprisoned in the state prison not less than one year nor more than five years.”
On the other hand, the Attorney-General contends that the italicized phrase qualifies only the clause immediately preceding it, and the statute defines two offenses, viz., the failure of a retiring officer to pay to his successor, at the expiration of his term, money then remaining in his hands, and the failure of the successor to pay over any such moneys to parties entitled thereto, on demand, or “when called on to do so.”
It is admitted by counsel for appellee that the treasurer’s failure to pay to his successor money remaining in his hands, at the expiration of his term, renders him liable on his bond without demand. Foster v. State, ex rel. (1899),
Counsel also admit that the reenactment of the act of 1905, supra, did not substantially change the statute as originally enacted in 1883, so far as treasurers are concerned. On this subject they say: “By §391 of this act [Acts 1905 p. 584, §2284 Burns 1908], the act of 1883 [Acts 1883 p. 106, §2021 Burns 1901] was revived and reenacted, the principal change made by the revision was to make all officers liable to the penalty, instead of only the clerks, sheriffs and treasurers. As to county treasurers failing to pay over moneys, there was no substantial change.” (Italics ours throughout opinion.)
In State v. Mason (1886),
In State v. Wells (1887),
This decision was never overruled, and the reenactment of.
In view of the two offenses created by the act, and the intention of the legislature in enacting the law, as determined by this court in the above ease, is a demand necessary?
In the case of State v. Leonard (1909),
It is claimed by appellee’s counsel that, regardless of the application of the phrase in the statute, “when called on to do so,” where, as here, the indictment does not allege an actual conversion, the allegation of a demand is necessary.
In State v. Mason, supra, this court used the following language: “The fraudulent failure or refusal to account for and pay over the funds in his hands being established, no proof of a subsequent demand and refusal would have been required. A refusal to deliver upon demand is not a conversion. It is only evidence of a conversion, and hence in such a case proof of a subsequеnt demand and refusal would have afforded only redundant evidence of the misappropriation or conversion constituting the crime charged. 2 Bishop, Crim. Law §373; Commonwealth v. Tuckerman [1857],
In the ease last cited this court said: “It is also contended by the appellant that the jury have not found a conversion
In Gillett, Crim. Law §417, it is said: “A demand is not necessary to establish a conversion, but is only an evidence of it. ’ ’ To the same effect see 28 Am. and Eng. Ency. Law (2d ed.) 706, and 15 Cyc. 522.
In their oral argument, counsel for appellee, in support of their construction of §2284, supra, called the attention of the court to §2283 Bums 1908, Acts 1905 p. 584. This latter section was first enacted in 1855 (Acts 1855 p. 89). As amended and reenacted in 1881 (Acts 1881 [s. s.] p. 174, §42, §1943 R. S. 1881) it applied to various officers, including county treasurers, and provided that any such officer, “who shall fradulently fail or refuse, at the expiration of the term for ivhich he was elected or appointed, or at any time during such term, when legally required by the proper person or authority, to account for, deliver, and pay over to such person or persons as may be lawfully entitled to receive the same, all moneys * * * which may have come into his hands by virtue of his said office, shall be deemed guilty of embezzlement,” etc. The penalty fixed was imprisonment, fine and incapacity to hold office for any determinate period.
The act of 1883 (Acts 1883 p. 106, §2021 Burns 1901) fixed the same penalty, except that it omitted the incapacity to hold offiсe.
In the reenactment of this act of 1855 as §390 of the act
It may be that when the act of 1883, supra, was passed, §1943, supra, was broad enough to cover the failure or refusal of the officer, when called on to do so, to pay to the persons entitled thereto funds received from a predecessor, and if so, that it is improbable that the legislature of 1883 sought merely to make the slight change in penalty that was made.
It is probable that the legislature of 1883 regarded it doubtful whether the act of 1855, supra, would embrace the conversion of funds received from a predecessor, and that the legislature of 1905 followed that construction.
In any event, such question is in noway involved here. As before stated in this opinion, this court in State v. Wells, supra, declared that the act of 1883, supra, defined two offenses, and only the first one of these is in question here. The changes in §§2283, 2284, supra, made by the legislature of 1905, were evidently for the purpose of making the two sections harmonize with each other and with the construction given by this court in the case of State v. Wells, supra.
The Hollingsworth case was decided in 1887, and was never overruled, and the construction given the act, in reference to proof of demand, was adopted by the substantial reenactment of the statute.
Counsel for appellee say in their brief that because the indictment in that ease alleged a demand, the question of the averment could not have arisen. This is true, but if there
This indictment follows the form given in Gillett, Criminal Law §420. This work has been recognized by this court and by the profession as a most valuable treatise on its subject. The author’s conclusion, that no demand is necessary in a prosecution for this offense, is thoroughly supported, not only by our own decisions, but by those of other states, and by textbook authorities. 10 Am. and Eng. Ency. Law (2d ed.) 995; Commonwealth v. Hussey, supra; State v. New (1875),
It is suggested by counsel for appellee, that this court will, among other things, take judicial notice that a county treasurer is entitled to certain commissions for the collection of delinquent taxes; that such commissions are received by the treasurer, by virtue of his office, and that the money here .charged to have been embezzled might consist of such commissions, the retention of which would, of course, not be embezzlement.
The indictment here, however, goes farther, and alleges that this sum of money, the defendant, at the expiration of his term of office, “had in his hands as such treasurer.” It could not possibly be held that money belonging to the treasurer, whether received in his official capacity or otherwise, was, at the expiration of his term of office, in his hands as the treasurer of the county. We think the language of the indictment excludes the theory that defendant might have been thе owner of the money.
It is not necessary to describe specifically the funds and name the several owners thereof, such as county funds, township funds, etc. In his official capacity, a county treasurer collects taxes which are eventually divided and paid to the State, the county, the townships and the various other municipalities and institutions. To specify such funds, and the names of the owners thereof, would be, if not practically impossible, wholly unnecessary. Hollingsworth v. State, supra; State v. Hebel (1880),
In the case of Hollingsworth v. State, supra, this court
That case was decided in 1887. The construction then given by this court, was adopted by the legislature in the reenactment. The averments of ownership were no more specific in the Hollingsworth case than in this. In fact they appear to have been the same, and consequently the authority of that ease is binding.
The statute does not expressly require that the official failure denounced shall be unlawful, fraudulent or felonious. In Stropes v. State (1889),
In many other cases, in addition to the ones stated in the above quotation, no doubt the accused would be guiltless of a violation of the act. And, under this decision, the officer can in no case be punished, unless the failure to pay to his successor was in truth felonious.
Stropes v. State, supra, was decided in 1889. The substantial reenactment of the statute in 1905 (Acts 1905 p.
It is finally contended by appellee that the section of the act under which this indictment was returned was repealed by implication by the depository act of 1907 (Acts 1907 p. 391, §§7522-7546 Burns 1908). The State claims the act was not in effect as to defendant during his term, but, if it was, it did not repeal the act in question. This court does not judicially know whether the Marion county board of finance had before January 1, 1908, selected depositories for county funds, authorized to receive deposits, under the pro' visions of the act, and consequently it is necessary to consider the point raised by appellee’s counsel.
In our opinion, the indictment in this case is sufficient to
Judgment reversed, with instructions to overrule the motion to quash.
Dissenting Opinion
Dissenting Opinion.
I am not able to concur in the majority opinion in this case as to the proposition that a demand is not necessary to be alleged under §2284 Burns 1908, Acts 1905 p. 584, §391, the section on which the indictment is based. Section 2283 Burns 1908, Acts 1905 p. 584, provides a penalty for the failure of a public officer at any time during the term for which he was elected or appointed, “when legally required by the proper person,” etc., to pay over money, or deliver property, etc., which may have come into his hands by virtue of his office. The penalty is a fine not exceeding $1,000, imprisonment for not less than one, nor more than five years, and disqualification from holding any office of trust or profit for any determinate period. Section 2284, supra, as I read it, applies to one going out of office and to his successor as well, while §2283, supra, applies to funds arising from collections during a term in the usual course of business. Section 2284, supra, prescribes a different penalty from §2283, supra, in that it leaves off the disqualification from holding office. The first portion of §2284, supra, does no more than declare a common-law duty and obligation, both as to the officer and the successor. The purpose of §2284, supra, was the protection, under criminal penalties, of particular characters of moneys as such, and is directed to the subject of moneys coming to an officer in a particular way, and against the officer for the time being who is the custodian. If this be not true, then §2283, supra, and the latter portion of §2284, supra, cover the same subject and ground, but with different penalties, and we must assume that there was some purpose in this statute, for
Acts 1855 p. 89, was amended in 1881 (Acts 1881 [s. s.] p. 174, §1943 R. S. 1881).
Section 2284 had its origin in 1883 (Acts 1883 p. 106), under an act entitled “An Act relating to county, State, and other officers, and the payment by them to their successors in office of all moneys in their hands at the expiration of their terms of office, and providing penalties for failing so to do.”
The act was as follows: “That it shall be the duty of each clerk, sheriff, and treasurer of the several counties in this State, and every other officer receiving money in his official capacity, at the expiration of his term of office, to pay over to his successor in office all moneys of every description, to whomsoever due, remaining in his hands at the expiration of such term, taking the receipt of such successor therefor; and such successor and his sureties shall be liable therefor on his official bond, as if the same had been originally collected by him; and any clerk, treasurer, or sheriff, so failing to pay over such moneys, or any successor, or clerk, treasurer, or sheriff who shall fail to pay over any moneys to parties entitled to receive the same when called on to do so, shall be deemed guilty of embezzlement, and, on conviction thereof, shall be fined in any sum not exсeeding one thousand dollars, and be imprisoned at hard labor in the State prison not less than one nor more than five years. ’ ’
The reason for the enactment of the statute is pointed out in State v. Wells (1887),
The words italicised mark the changes. The word ‘ ‘ such ’ ’ in the phrase “failing to pay over such moneys” and in the phrase “who shall fail to pay over any such moneys,” clearly refers to moneys in the hands of an outgoing officer, payable to, and also those received by a successor in office, for it will be seen that the words “such moneys” in the first clause can by no construction be limited or applied to successors in office, for immediately following it “successors” are specifically designated, to my mind clearly indicating that the phrase when “called on to do so” refers not only to the outgoing officer, but also to his successor at the expiration of, or during his term of office, as to moneys received in succession, and the change in the act of 1905 by the addition of “such” indicates the intent. There could be no other reason for the section. The disjunctive “or” in the act of 1883, after the words “such moneys,” and before the words “any such successor,” and the substitution of “and” leads further to the intention to couple both characters of officers in the same
It is conceded by the State, as to payments during the term of office of the original collecting officer, demand is required because the statute so provides. It is argued that this is so, because it is only because of a proper demand made on him that he can be called on or required to pay, but that at the expiration of a term, the duty arises and is fixed by law to pay over, and that the law implies, or raises a demand, from that fact. The duty arises in one case .as much as in the other, so far as the abstract provision of the statute as to payment is concerned. Doubtless the legislature might provide that a prosecution for embezzlement will lie without a demand alleged, or that the action will lie without proof of a demand, under proof of fraudulent failure, or refusal to account for and pay over money, but that would be a question arising on the evidence under which a fraudulent failure, or fraudulent failure to account and pay, shown, would in and of itself obviate a demand, and this I understand to be the effect of the cases upon which the State relies, but I find no case in whiсh it is held that a demand under §§2283, 2284, supra, need not be alleged as a matter of pleading. The case of State v. Mason (1886),
In State v. Record (1877),
It should be noted that under §2282 Burns 1908, Acts 1905 p. 584, §389, conversion by defined acts constitutes the crime, without demand. Dean v. State (1897),
With §§2283, 2284, supra, as throwing light on the question, should be read §2130 Burns 1908, Acts 1905 p. 584, §254, which imports the requirement for a demand, while §§2291, 2292 Burns 1908, Acts 1905 p. 584, §§398, 399, are akin to said §2282 in making the conversion itself a crime without demand.
It is well established that it is sufficient to charge an offense in the language of the statute when the statute defining an offense specifies what acts shall constitute an of
The offense provided for in §2284, supra, is a failure to pay over money, and it is conceded in the prevailing opinion that it must be a fraudulent or felonious failure, hence it would not be sufficient merely to charge in the language of the statute a failure to pay over, but the prevailing opinion travels on the theory that it is being charged that appellee did “unlawfully, feloniously and fraudulently fail, neglect and refuse” to pay, is sufficient to constitute the offense. The term “refuse” to pay might imply a demand, but the offense cannot be charged by implication. Were it not for the peculiar language of §2284, supra, taken with §§2130, 2282, 2283, supra, I should be constrained to hold' that an offense is charged, because the charge of feloniously failing would probably imply criminal intent, and yet we have seen that to charge the failure as “unlawful” is not sufficient, but the statute has, as I conceive it, provided what must be done to raise the question of fraudulent or felonious intent, as a matter of pleading. The evidence might be such in a given case as to raise the question of felonious intent, without a formal demand shown, but under the statute as a matter of pleading it cannot, in my opinion, be raised without an allegation of a demand. If, as claimed by the State, the time fixed by law for paying over to a successor makes a demand, the words “when called on to do so” are meaningless, and we must regard them as being advisedly and purposely used. Why inject words into the statute which are not there, and reject or give no force to words which are there, when, under the views herein expressed, neither course is necessary, for the offense is ripe for punishment by so sim
# Civil cases where it is held that no demand is necessary when the contract or law fixes a definite time of payment, manifestly are not in point on the question before us, for the reason that the suit makes the demand.
Recurring to the statute, it seems to me that §2284, supra, describes but one offense, as applying alike to a public officer failing to pay over to his successor, and the failure of the latter, in turn, to pay to his successor, or to those entitled to the particular fund so received, and that in either case, the phrase “when called on to do so” refers to both classes, and that it is a statutory requirement under this section, as a matter of pleading, that demand must be alleged, unless it be alleged to be impossible from his absconding, or other excuse rendering it impossible. Dean v. State, supra; Kossakowski v. People (1899),
If it be said that under this construction it permits the incoming officer to determine when an offense has been committed, depending on the question whether a demand is made or not, the answer is that the books and the settlement sheets show the situation, and that the incoming officer will be presumed to do his duty, and do what the statute requires, and for failing to do so he is liable to removal for malfeasance, misfeasance or nonfeasance in office. §9662 Burns 1908, Acts 1897 p. 278, §35.
At common law he was indictable.
The distinction between statutes which give rise to statutory crime from the statutory declaration that a given state of facts shall constitute a crime, as embezzlement from con
The cases relied on in the prevailing opinion were all passed on prior to the enactment of 1905, and prior to the publication of the excellent treatise of Judge Gillett, and the changes in the act of 1905 were doubtless due to the holdings in those cases. As I have shown, State v. Mason, supra, based on the Massachusetts case, overlooks the important fact that the latter was a case of conversion in fact, not technical conversion, and in the Mason case actual conversion was charged. In Hollingsworth v. State, supra, a demand was alleged, and while there was no technical demand shown, the court adverts to the fact that it is shown by the evidence that he was clearly guilty and that he admitted the conversion of the funds, so that actual conversion was shown. "When we come to State v. Adamson (1888),
It is said that demand is only evidence of conversion, and if so, then when conversion is alleged, the thing itself is alleged, and not the evidence of it, and it is that fact, circumstance and condition in all the cases which obviates the necessity for demand, as an unnecessary thing, where conversion is alleged. A fact is certainly as potent as the evidence of it, and this is the key to the decisions, and also the reason for the language of the statute, which is in exact consonance with the decisions.
Under the prevailing opinion, the statute is the subject of malicious opprеssion, while under my views it is intended that there shall be a demand unless conversion is charged under §2282, supra, or demand being impossible, and a reason alleged. State v. Munch, supra, is directly in point, also State v. Hunnicut (1879),
An examination of these cases will disclose the distinction between embezzlement by conversion, under §2282, supra,
But this section has no proviso, or exception, and one should not be interpolated, nor should a citizen be- called on to expend money, or his character be defamed by a charge in such form that he must prove a negative or an excuse, unless the statute so provides, nor except upon a charge of a statutory offense, and certainly not where it is doubtful, to say the least.
I think the indictment is insufficient, and the judgment should be affirmed.
Note.—Reported in