70 Mo. 565 | Mo. | 1879
This was an indictment against the defendant, under the statute of 1870, (Wag. Stat., p. 459, § 41,) for embezzling a large amount of money, whilst acting as a servant or agent of the county of St. Louis. There was no question as to the embezzlement, and the defendant was convicted, but the court of appeals reversed the judgment on account of an erroneous instruction, and the only question before this court is whether the instruction given was a ground for reversal. The charge of the court was this:
“ Gentlemen of the jury : The indictment in this case contains five counts. The circuit attorney has declined to prosecute the charges embraced in three of them, viz : the second, third and fourth, and these, therefore, are not before you for your consideration.
The second of said remaining counts, which is the fifth of the indictment, differs from the first only in this, that instead of charging that the defendant was appointed by the county court, it charges that at his request he was by said court permitted to act as and become the agent and servant of the county for the purpose stated; in other words, the two counts refer to the same matter of com: plaint and differ only in their averment of the manner by which the defendant’s official relation to the county was, if at all, created.
The provision of the statute law of this State under which this prosecution is sought, to be maintained, in so far as it relates to this case, is as follows: “ If any officer appointed or elected * * * including as well all officers, agents and servants of incorporated cities and towns as of the State and counties thereof, shall convert to his own use in any manner whatever any.portion of the
As county auditor the defendant was not authorized by law to receive the moneys in question, that is to say, by virtue of his office as such solely, he had not the legal right to receive them. If he received them simply and only as auditor, and he did not at the time also hold to the county with respect to these moneys the official relation either of agent or servant, he cannot be convicted under this indictment. But if he received them while he actually held the dual official relation to the county, of auditor and agent, or auditor and servant, and it was his duty to receive them, not as auditor, but as agent or servant, it is immaterial whether he received them as auditor or agent, or as auditor or servant, for the law will not in such a case heed such a distinction.
If the defendant assumed to act and was by the county-court permitted to act as agent or servant of the county for the purpose of receiving and collecting for safe keeping and transfer into the county treasury the moneys mentioned in the indictment, and if he -did so act and as such received and collected said moneys, and for so doing he claimed and was paid compensation out of the public moneys of the county, he cannot now be heard to deny his agency or service with respect to such moneys so received by him.
If, therefore, from the evidence before you, you believe and find that the defendant became and was the agent or servant of the county of St. Louis for the purpose of receiving or collecting for safe keeping and transfer into the treasury of the said county the public moneys alleged in the indictment; that as such agent or servant, and while so employed* he received and took into his possession and
The court of appeals reversed the judgment on account of the following words in the instruction : “ If he received them whilst he actually held the dual official relation to the county of auditor and agent, or auditor and servant, and it was his duty to receive them, not as auditor, but as agent or servant, it is immaterial whether he received them as auditor or agent, or as auditor or servant, for the law will not in such case heed such a distinction.” The previous instructions, and indeed the whole defense set up, were that if the jury believed the moneys were received in the capacity of auditor, the defense was established. There was no dispute about his being auditor; the instruction by the court on this point was clear and decisive. The fact was that the defendant claimed a salary outside of his salary as auditor, and was allowed it for attending to the school fund. We concede that this instruction admits of the interpretation placed on it by the court of appeals, but we think it could not have been so understood by the jury, and was not so understood.
On this point the opinion of the court of appeals, delivered by Havden, J., was as follows: It was error to tell the jury that it was immaterial whether the defendant received the moneys as auditor or agent or as auditor or servant, or to make it a test and to submit to the jury the question whether it was the duty of the defendant to receive the moneys as auditor or agent or servant. The instruction at this point should have been to the effect that if the defendant held towards the county the relation or agent or servant, as appointed or permitted so to act by the county court, and in fact received the moneys not as auditor but as such agent or servant, then the circumstance that lie was auditor and so acted in other matters in relation to the school loans, "was immaterial.