State v. Gillis

| Miss. | Dec 15, 1897

Whitfield, J.,

delivered the opinion of the court.

The indictment does aver, as we think, that the defendant had the money, which he had received in the years stated, in his hands on March 1, 1893, and failed to pay it over when ordered to do so. After stating that defendant was guardian on March 1, 1893, and had received during the years 1887, 1888, 1889, 1890, 1891 and 1892 (without saying in what part of the year 1892), the sums of money, it then avers that he was “then and there,” on March 1, 1893, due his ward said money; and then avers that, ‘ ‘ so having said money in his hands, received as aforesaid, it was then and there his duty to faithfully account,” etc., and to “ deliver up said moneys,” etc., “ agreeable to the order of said chancery court,” etc., and that he was ordered to pay it over, and failed and refused to do so, and then concludes by averring that the said “ Gillis, in failing to pay over said money as he was required to do, did then and there unlaivfully convert, ’ ’ etc. This language is only satisfied by understanding the indictment to charge that Gillis, having-then and there (that is, on March 1, 1893) the said money, which, as a separate act, he had theretofore in the years stated received, and which he was to deliver up when ordered, did, when so ordered, convert it to his use so having it, by failing to pay, etc. The indictment, therefore, is good on the second clause of § 1063 of the code of 1892. If it should be shown on the trial that the money was never in hand since the code of 1892 went into effect, of course the defendant would be acquitted under this indictment, since the language of § 1063 is prospective, and could not receive an ex post facto application to the case of one who had never had the money since § 1063 became the law. Neither, in that event, could he be punished under the code of 1880, §2787. The offense created by that section was never a crime in this state before, as held in Hemingway v. State, 68 Miss., 405. Being the creature of statute, it could only be dealt with under statutes. Now, under § 2787, code of 1880, it took both conversion and failure to pay when required, to complete the crime. Unless both things had been done, there was no crime. Here, plainly, there was no failure to pay over when required, under the code of 1880, but only under the code of 1892, § 3 of which repealed the code of 1880, and the saving clauses of code of 1892, §§ 3, 4 and 5, so far as crimes are concerned (§ 5) relate alone to “ completed ” offenses. We think it is clear that an application to this case of § 1063 of the code of 1892 would be ex post facto, if it be true that the money was not received after the code of 1892 went into effect, and the money was converted before. Under §2787, code of 1880, both conversion and failure to pay over when required were necessary to constitute the particular crime therein created. Under § 1063 of the code of 1892, the use of “or” instead of "and" makes either of these things a felony. Under the code of 1880, five years constituted the maximum punishment; under the code of 1892, twenty years constitute the maximum punishment. The elements of the two offenses are wholly different, and the maximum punishment increased by fifteen years. It is too clear for disputation that § 1063, of the code of 1892, would be ex post facto if applied to the conversion when that occurred before its adoption; and it is equally clear that it would be ex post facto as to the failure to pay over, in a case where the party defendant never had the money until after the adoption of the statute making it, for the first time, a crime to fail to pay when required. See the authorities in brief of learned counsel for appellee.

The argument that there has never been any change in the law by reason of, the use of the words ‘ ‘ any act done, ” in § 4 of the code of 1892, is not sound, as the above analysis of the statute shows. Anding v. Levy, 57 Miss., 57, has no application. There the repealing statute re-enacted the clause of the repealed statute under consideration ipsissimis verbis, and, of course, that clause was continuously the law, without an instant’s break. But the case here, as above shown, is widely different. A construction of a saving clause (§ 5, code of 1892) which relates alone to offenses completed (as expressly declared, offenses consummated in the past), which would bring forward an act — conversion—no crime under the code of 1880, though .completely consummated, and give it its character as a crime for the first time under the code of 1892, § 1063, first making it such, and still punish it under the code of 1880, under which it never was an offense, is far beyond support. We do not wish, however, to be understood as intimating the opinion that under § 1063, of code of 1892, the mere failure to pay, when required, money which the party had received under that code, is not made a crime. We think that the very purpose of said cláuse was, for the first time, to make the mere failure to pay over, when legally required to do so, a felony, as to the future, provided the money had once been received under the code of 1892. That was clearly within legislative power. We have thought it proper and necessary to say this much for the guidance of the court below in the further progress of the case.

Since the indictment is good, under the last clause of § 1063 of the code of 1892, the judgment is reversed, and the cause remanded for further proceedings.