State v. Jones, 58 So. 782

State v. Jones

58 So. 782 | Miss. | 1912

Cook, J.,

delivered the opinion of the court.

This is an appeal by the state from the judgment of the circuit court of Lincoln county, sustaining the demurrer to an indictment charging appellant with the crime of embezzlement.

Omitting the formal parts of the indictment, it reads as follows: “Z. P. Jones did, on the 4th day of September, 1911, in the county aforesaid, being then and there a public officer of Lincoln county, said state of Mississippi, to wit, a member of the board of supervisors from district No. 1 of said county and state, and being then and there president of said board, and being such officer as aforesaid, did then and there, on March 20, 1906, receive the sum of one hundred and forty-four dollars in money of and from one M. Graham for the fine and *99cost due Lincoln county, said state of Mississippi, by one Will Wall, which had been legally imposed against the said Will Wall, and being then and there a legal debt, due by the said Will Wall to Lincoln county as aforesaid, and being then and there the money and property of Lincoln county when paid and delivered to'the said Jones as aforesaid, and the said money being then and there intrusted to the said Jones for Lincoln county, and it being then and there in his hands and in his possession, the said Jones did then and there unlawfully, willfully, and feloniously embezzle the said sum of one hundred and forty-four dollars, the money and personal property which had come into his possession and which had been intrusted to him as aforesaid, and being the money and property of Lincoln county as aforesaid, and the said Jones did then and there unlawfully, willfully, and feloniously convert said sum of money to his own use and benefit, with the felonious intent to cheat and defraud the said Lincoln county of the said one .hundred and forty-four dollars as aforesaid, contrary to the form of the statute,” etc.

We do not deem it necessary to undertake to distin-. guish the line of cases cited by the attorney-general in” support of the indictment from the instant case¿ These”cases are, in our opinion, totally inapplicable, to -the question involved here. The cases cited are to the ’ effect:, that a servant, indicted for embezzling the money -of hismaster, cannot be heard to say that he exceeded his authority in the time, or the place,- or. the manner in which he came -into possession of his master’s property. No such state of facts are involved in this case. The trouble with this indictment consists in the fact that the averment of ownership of the money alleged to have been embezzled is in direct conflict with the other averments of the indictment reciting to whom and under what circumstances the money is averred to have been paid to-the defendant. The defendant, therefore, does not seek *100to escape upon any such technicality. It will be noted that there is no averment in this affidavit that the appellant, who it is averred was president of the board of supervisors, received the money by virtue of his office, •or by the color of his office, or by reason of the fact that he was president of the board of supervisors. If it was so charged, it does not follow that the money intrusted to him thereby became the property of Lincoln county. On the contrary, the county did not become the owner, and, at best, the defendant took the money as the servant or trustee of the party who intrusted it to him, and, the title to the money never having passed to the ■county, the demurrer raises the question as to whether ■or not he is properly charged with embezzling the money •of the county.

If the defendant had gone to trial upon this indictment, and secured an acquittal from the jury, he could not thereafter have pleaded a former acquittal in bar of another indictment reciting all that this indictment contains, except the averment of ownership, which was stated to be in Graham or Wall. If the facts are as alleged in the indictment, the defendant embezzled the property of Graham or Wall, and not the property of Lincoln county, and for this reason this indictment was, in our opinion, fatally defective. There was no fiduciary relationship existing between appellee and the county, and the mere averment that when the money was paid to him it thereby became the property of Lincoln county does not make it a fact, when the other averments are in irreconcilable conflict with this averment.

Affirmed.