130 Iowa 370 | Iowa | 1906
On September 8, 1903, the grand jury of Harrison county, Iowa, returned an indictment against the appellee, the body of which instrument was.in words as follows:
The grand jury of the county of Harrison, in the name and by the authority of the state of Iowa, accuse Horace H. McKinney of the crime of embezzlement committed as follows : The said Horace H. McKinney, pn or about the sixth day of January in the year of our Lord one thousand nine*371 hundred and two, in the county aforesaid, who was then and there an officer of said county, ,a corporation duly organized and existing under the laws of the state of Iowa, to wit, the treasurer of said Harrison county, duly elected and qualified and legally authorized and empowered to perform all the duties of said office, and that the said Horace H. McKinney, as such officer and treasurer of said county, was then and there entrusted with, and did then and there have in his possession and under his care by virtue of his said office, certain public moneys, to wit, the sum of forty thousand three hundred sixty-six dollars and ninety-seven cents, of the property and effects of said county, and of the value of forty thousand three hundred sixty-six dollars and ninety-seven cents, and that said Horace H. McKinney, did then and there unlawfully, fraudulently, and feloniously embezzle without the assent of the said county, or any person thereto authorized, of the said public moneys aforesaid, to wit, the sum of two thousand seven hundred sixty-six dollars and five cents, and of the value of two thousand seven hundred sixty-six dollars and five cents, for which he, the said Horace H. McKinney, as such officer and treasurer aforesaid, has failed and neglected to account, although demand has been made of the said Horace H. McKinney by the county aforesaid; the custody and care of which he, the said Horace H. McKinney, was then and there as aforesaid entrusted, and which he, the said Horace H. McKinney, did then and there have and hold by virtue of his said office of treasurer of said Harrison county, Iowa, contrary to and in violation of law.
To this indictment defendant demurred on grounds stated as follows:
(1) That the indictment fails to charge that the defendant as a public officer failed or refused to keep the money received by him as such officer in any place of custody or deposit that was provided by law for keeping such money until the same was withdrawn therefrom as authorized by law. (2) That the indictment fails to charge that the defendant did keep or deposit such public funds in any place other than the place authorized for the keeping and deposit of such funds. (3) That the indictment fails to charge that the defendant as a public officer converted to his own use any of the public funds or property which came into his*372 hands by virtue of his office. (4) That the indictment fails to charge that the defendant did use by way of investment in any kind of property or loans without authority of law, any of the public funds coming into his hands as such officer. (5) That said indictment fails to charge that lawful and sufficient demand was made upon defendant to account for funds or property coming into his custody as a public officer. (6) That the indictment fails to charge that demands were made upon the defendant to account for public funds and property coming into his hands by any person entitled to receive the same or at a time at which any person had a right to make demand.
The demurrer was sustained by the trial court, and the state appeals.
In substantially this form the statute had stood for many years prior to the session of the Twenty-Sixth General Assembly (Laws 1896, page 69, chapter 67), and most of our decisions touching the law pertaining to this offense were rendered thereunder. The General Assembly above named amended the section by adding thereto the following words: “Any such officer who shall receive any mbney be
We are aware that his theory is not without apparent support in some of our earlier cases, but conceding for the purposes of the case before us the entire correctness of those precedents under the statute as it then stood may we not properly infer that the later amendment was intended to avoid the possibility of such anomalous results. It would seem to go without saying that it ought not to be possible
It is true that a county may for some purposes be considered a “ person ” in law, but it is a corporate person
The indictment before us relies solely upon the constructive conversion which is effected or consummated by the refusal of a proper demand and it is very essential therefore that the demand shall be pleaded not as a mere naked conclusion which conveys no information as to the facts on which it is based, but the charge must disclose a demand by the person .entitled to receive the thing demanded. It is suggested by counsel for the state that the charge made in the indictment has no necessary reference to a failure of the accused to pay over or deliver the public moneys and property to his successor, but that such allegation may refer to a failure to account and settle with the board of supervisors on retiring from office as provided by the statute above cited; or it may refer to a ease of a re-elected treasurer who fails
An indictment which is so broad and general in • its terms that the accused may be put upon trial for any one of two or more distinct and independent criminal acts, and which is so indefinite in the charge preferred that the essential facts constituting the alleged offense may remain unknown to the accused until they are disclosed on the trial, is not in compliance with the statute to which we have referred. See State v. Brandt, 41 Iowa, 593; State v. Potter,
It may also here be said that every fact expressly charged by the indictment may be admitted and the defendant be guilty of no crime. The county is not entitled at all times and under all circumstances to demand an accounting or production and surrender of the public funds by its treasurer. A demand for such accounting, production, and surrender may or may not be rightful according to the time and circumstances under which it is made. It follows of necessity, therefore, that to charge a criminal failure or neglect in this respect on part of the treasurer the particular facts which serve to characterize the failure or neglect as criminal must be alleged.
Such being our conclusion, it follows that the ruling of the trial court must be upheld as correct.— Affirmed.