75 Miss. 331 | Miss. | 1897
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
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 There the repealing statute re-enacted the clause of the repealed statute under consideration ipsissimis verbis, and, of course, that clause was continuously the law, without an instant’s break.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.