State v. Mahan

138 Mo. 112 | Mo. | 1897

Sherwood, J.

The defendant was indicted for embezzling as constable of Howell township in Howell county, a certain sum of money, the money of one Pitts, on the-day of March, 1894.

The indictment is as follows: “The grand jurors of the State of Missouri, summoned for the body of Howell county, impaneled, sworn and charged to inquire within and for the body of Howell county, upon their oaths, present aud charge that J. S. Mahan, late of the county aforesaid, on or about the-day of March, 1894, at the county of Howell, State aforesaid, then and there was an officer duly appointed and qualified by virtue of the laws of the State of Missouri, to wit: A constable for and within Howell township, Howell county, Missouri, did unlawfully and feloniously make away with, secrete and convert to his own use and embezzle money that came to him by virtue of his office as constable as aforesaid, to wit: One hundred dollars lawful money of the United States, the money and property of one T. I. Pitts, which said money came to and was collected by said J. S. Mahan by virtue of his official position aforesaid, under a certain execution duly issued by one J. A. Sigler, then a justice of the peace in and for said Howell township, Howell county, Missouri, duly qualified and authorized by law to issue said execution and placed in the hands of J. S. Mahan, constable as aforesaid, against the peace and dignity of the State.”

Being tried, defendant was found guilty and his punishment assessed at two years in the penitentiary.

The indictment is framed under provisions of section 3555, Revised Statutes 1889, beginning with the words: “If any officer appointed or elected by virtue of the Constitution of this State, or any law thereof,” etc.

The appeal of defendant should be successful for the reason of an entire failure of evidence to show the guilt of defendant as charged in the indictment. The evidence showed that judgment was rendered in the magistrate’s court on the twenty-ninth of August, 1893, in favor of Pitts and against the securities on the note, and execution issued on the same day, and on that date delivered to Rennaker, the constable under whom defendant was serving as deputy. This execution it seems was never returned. Afterwards, Rennaker removed from Howell county, and the county court on the fifth of February, 1894, appointed defendant constable to fill the vacancy.

But when the money in question was collected, whether by defendant when deputy constable under Rennaker, or subsequently when defendant became constable, does not appear. It seems quite clear that he collected the money at some time, but in what capacity does not appear. It certainly can not be,permitted to charge a defendant with having collected money as constable and then proving its collection by him as deputy constable, nor vice versa.

The demurrer to the evidence was therefore well taken, and judgment reversed and cause remanded.

All concur.