69 Me. 22 | Me. | 1878
This is an'indictment against a collector of taxes for embezzlement. Two questions are presented; one, whether the indictment is sufficient; the other, whether an officer defacto is punishable for embezzlement, the same as an officer de jure.
The only objection made to the indictment is, that it does not allege that the defendant was duly elected or appointed a collector of taxes ; or that he was duly qualified as such. The indictment avers that he was a “ public officer, to wit: The collector of taxes of the town of Minot.” And that, by virtue of his office, he received and had in his possession money, which he embezzled, etc. It is claimed that this is not sufficient; that it should be avei’red how he came into the office, and that he was duly qualified to act as collector, by taking the oath and giving the bond required by law. We think the indictment is sufficient as it is. It is conformable to approved precedents, and is the same in form as the one in State v. Walton, 62 Maine, 106. 1 Whar. Prec. Indictments, form 460. 2 Arch. Crim. Law, 1362-3.
The next question is whether an officer de facto is punishable for embezzlement the same as an officer de jure. The question arises in this way : The warrant for the town meeting at which the defendant was elected was posted by the selectmen, (not a constable) and they state in their return that they did so by virtue of a “ standing vote of the town; ” but the standing vote was not produced and read in evidence at the trial; and it is claimed that for this reason the town meeting does not appear to have been legally called ; that the defendant does not appear to have been legally elected ; that he must, therefore, be regarded as no more than an officer de facto; and that an officer de facto is not punishable for embezzlement. Passing over the question of the legal
We think he is. The statute, which provides for the punishment of embezzlement, declares that, if a “ public officer ” embezzles, etc., he shall be deemed guilty of larceny, and be punished accordingly. R. S., c. 120, § 7.
The word “officer” is defined in Webster’s Dictionary as “one who holds an office ; a person lawfully invested with an office,” etc. The latter branch of this definition would seem to embrace only officers de jure; but the first is clearly comprehensive enough to include officers de facto. “ One who holds an office.” An officer de facto as clearly holds an office as an officer de jure. The term “ officer ” is generic, and when used in a statute, and there is nothing in the context, or in reason, or authority, to indicate that it is used in a different sense, we think it should be held to include all classes of officers — officers de facto as well as officers de jure. There is nothing in the context of the statute cited to indicate that the word was used in a different sense. And, surely, no good reason can be given why an officer defacto should not be punished for embezzlement as well as an officer de jure. The moral wrong, the wickedness of the act, must be as great in the one as in the other; and if we punish the latter and allow the former to escape, we make it an object for men to obtain office by illegal rather than legal means; thus encouraging instead of repressing illegalities. Nor are we aware of any authority for such a distinction. It is said by Hawkins (and he has always been held as a very reliable authority) that an officer de facto is punishable the same as an officer de jure, “ for that the crime is in both cases of the very same ill consequence to the public, and there seems to be no reason that a wrongful officer should have greater favor than a rightful officer, and that for no other reason but because he is a wrongful one.” 3 Hawk. P. C. c. 19, §§ 23, 28.
And the law is so laid down by other text writers. 1 Arch. C. L. 413-4. Roscoe’s Crim. Ev. 6. 1 Bishop’s C. L. § 416. 2 Bishop’s C. L. § 392.
Exceptions overruled.
