71 P. 860 | Kan. | 1903
The opinion of the court was delivered by
The appellant was convicted of embezzlement of money which came into his hands by virtue of his official position as treasurer of the city of Clyde. The information was drawn under paragraph 2081, General Statutes of 1901, and charged both a refusal to turn over the money of the city upon demand, and a fraudulent appropriation of it to his own use, under separate clauses of the statute. Upon a motion to quash, the district court held that the information did not state facts sufficient to constitute an offense under the clause relating to turning over money upon demand, characterized the language of the information relating to such matter as surplusage, announced that such matter would be disregarded, and sustained the information under the other clause. The appellant then filed a motion to require the state to elect under which clause of the statute it would proceed, which was sustained, and the state elected to proceed under the clause sustaining the information, purged of surplusage.
“The facts stated in this complaint do not show that the judgment in question was void. The allegation that no summons was issued under the seal of the court, ana directed and delivered to the sheriff, as required by law, and that no such summons was ever issued, etc., is not good because, instead of alleging the facts, it states only a legal conclusion.” (Krug, Sheriff, v. Davis, 85 Ind. 309.)
“An averment that no such petition was filed as the statute requires, is a mere conclusion and not traversable.” ( Schuchert v. W. C. & W. R. R. Co., 10 Ill. App. 397.)
*451 “The plaintiff averred in the seventh paragraph of his petition that ‘ there was no Such sale of the property as the law provides, and that there was no compliance with the law after the property was offered for sale.’ The defendant moved to strike out the paragraph, on the ground that it averred only a conclusion o'f law. The motion was sustained, and the plaintiff excepted. He insists that the paragraph should be taken with other paragraphs which he claims contain averments of facts showing in what the illegality of the sale consisted.. Whatever is numbered as a distinct paragraph should contain something more than a mere conclusion of law based upon statements of .facts contained in some other paragraph. We think the court did not err in sustaining the motion.” (Cooper v. French, 52 Iowa, 531, 3 N. W. 538.)
“An allegation that S. is not now or never has been legally appointed assignee for N. is a conclusion, and a demurrer thereto should have been sustained.” (Smith v. Kaufman & Co., 3 Okla. 568, 41 Pac. 722.)
Since the plea was fatally defective in one of its material averments, it was not error to refuse a jury to try it, or to overrule it altogether, as was done.
The specific charge in the forgery case was that the defendant made certain false entries in his books of account, whereby his claim against the city purported to be increased, and the obligation of the city to him diminished, and the obligation of the city on certain bonds purported to be dischai’ged, with intent to defraud the city. In this case it is alleged that, by virtue of his office, he received moneys which he unlawfully and fraudulently embezzled and converted to his own use. There is but one 'element common to these crimes,, and that is an intent to defraud. The acts to which the intent relate are wholly dissimilar. In one case the crime is accomplished by making false entries in an account-book ; the receipt and appropriation of money are not involved. In the other case the crime is accomplished by receiving and converting money ; the making of false accounts is not involved. The statute defining one crime punishes the falsification of records of business transactions ; that is the substantive offense. The statute defining the other crime punishes the conversion of money; that is the substantive offense. Each statute relates to a separate criminal act. The issues to be tried in each case are not identical. Neither offense includes the other offense. In each case some act which constitutes an indispensable element of the crime is necessary, which is different from any act required by the other. All the evidence necessary to prove the receipt and conversion of money with intent to defraud would not establish the making of false entries with intent to defraud, and all the evidence necessary to prove the forging of entries of ac
These are the tests which have been applied by this court in determining the sufficiency of pleas of former jeopardy :
“The two offenses are entirely distinct. One is not included in the other — is not a lesser degree of the other. The character of the testimony must be different in each. One fact, that is, ‘shooting/ may be necessary for conviction under either charge. But something more is necessary in each than the mere fact of shooting. The rule is thus stated by Wharton in his Criminal Law (1 Wharton, 7th ed., § 565) : ‘It may be generally said that the fact that the two offenses form part of the same transaction is no defense when the defendant could not have been convicted at the first trial, on the indictment then pending, of the offense charged in the second indictment.’ ’’ (The State v. Horneman, 16 Kan. 452.)
“Now, although the matters charged in both complaints occurred at the same time and grew out of the' same difficulty, still we think that they constituted two different offenses against the city ordinances of the city of Olathe — one for the assault and battery upon J. F. Border, and the other for disturbing the peace, by drawing the revolver upon John Border, and by the defendant’s other violent conduct, and his improper language. The assault and battery upon J. F. Border certainly did not include all these other matters charged in the complaint made by John Border. And the punishment for the assault and battery upon J. F. Border was certainly no punishment for the breach of the peace in pointing a revolver at John Border.’’ (City of Olathe v. Thomas, 26 Kan. 233.)
“But it is clear beyond all doubt, as appears from the real facts of the case as set forth in the defendant’s plea of a former acquittal, that the principal facts constituting the two alleged offenses are identi.*454 cally the same ; and that one of such offenses could not be proved without proving the principal facts constituting the other of such offenses. Indeed, the offense charged in the first information could not be proved without proving all the facts constituting the offense charged in the second information. If the defendant was guilty under either information, he must have been guilty under both; and if he was innocent ,-as to either of the offenses charged, he must have ¡been innocent as to both. He could not possibly be .guilty of one and innocent of the other.” (The State v. Colgate, 31 Kan. 511, 3 Pac. 346, 47 Am. Rep. 507.)
"Both informations charge offenses under the same section of the statutes, viz., section 38 of the act regulating crimes and punishments. Both informations refer to the same acts, the only difference being that a different criminal purpose is attributed to the defendant. We think under this section the substantive offense is the assault. The intent with which it was committed charactexdzes it and determines its degree of criminality. Only one prosecution can be maintained under this section for the same assault, whatever the purpose of the defendant may have been.” (The State v. Chinault, 55 Kan. 326, 40 Pac. 662.)
See, also, The State v. Williams, 60 Kan. 837, 58 Pac. 476.
In the case of State v. Cross and White, 101 N. C. 770, 9 Am. St. Rep. 53, 7 S. E. 715, officers of a national bank forged a note and entered it on the books of the bank as assets, with intent to deceive the bank examiner. The federal courts had exclusive jurisdiction to try the offenders for the false entries. In a prosecution in the state court for the forgery of the note this fact was pleaded in bar. The argument in support of the plea was as follows :
"The false entries on the books of the. State National Bank of Raleigh, N. C., are so false because based*455 upon the forged notes. If the notes are not forged, the entries are not false. To determine the falsity of said entries, the federal court has exclusive jurisdiction. If the state court be conceded jurisdiction to try the defendants for said forgeries, the federal court cannot afterwards try the defendants for the false entries, the forgeries being integral and essential elements in the false entries. The federal court having exclusive jurisdiction to determine the falsity of the entries and to punish the makers thereof, it follows that jurisdiction to try the defendants for said forgeries cannot be conceded to the state court.”
The court held, however, that, notwithstanding the forged note was the instrument employed to give ■ a false coloring to the entry and deceive one examining into the financial condition of the .bank, the forgery and the making of the false entries were distinct crimes, punishable separately, and said :
‘ ‘ The forgery is not, then, a constituent part of the criminal act of making a false entry, though in the present case preceding the latter in time, and comprehended in the general purpose formed to defraud, and furnishing strong evidence of the unlawful intent in making the entries, an'd thus misrepresenting the resources and condition of the association when undergoing official examination. . . . The principle is not affected by the fact that the spurious character of the note may supply forcible if not invincible evidence of the mala fides and fraudulent' purpose of the act of the making the false entry.”
The conviction of forgery in the state court was, therefore, affirmed, in spite of the fact that the defendants could still be prosecuted in the federal'courts for making false entries, and that the latter crime was necessarily provable in part by showing the forgery of the note. .
The demurrer to the plea was properly sustained, and the objection to the evidence properly overruled.
In 1852 the supreme court of Massachusetts, in deciding that money accumulated by the illegal sale of intoxicating liquors was nevertheless the subject of larceny, said:
“That same common law, which, in its integrity*457 and wisdom, refuses to lend itself to be the instrument, even indirectly, for the .execution of a criminal contract, will as little condescend to throw its mantle over crime itself. The law punishes larceny, because it is larceny ; and, therefore, one may be convicted of theft, though he do but steal his own property, from himself or his bailee. 7 H. VI. 43a; 3 Co. Inst. 110. And the law punishes the larceny of property, not solely because of any rights of the proprietor, but also because of its own inherent legal rights as property ; and, therefore, even he, who larceniously takes the stolen object from a thief whose hands have but just closed upon it, may himself be convicted therefor, in spite of the criminality of the possession of his immediate predecessor in crime. This principle is coeval with the common law itself as a collection of received opinions and rules, for we have to go back to the Year-books to find its first judicial announcement. The leading decision is the case of a so-called John at Stile, in 13 Edw. IV, 36., where it was held by the judges that if A. sfcekl the goods of B., and afterwards C. steal the same goods from A., in such case C. is indictable both as to A. and as to B. This decision was afterwards affirmed arguendo in 4 Hen. VII 56. . . .
“ We do not say our doctrine is good law, merely because’it was in principle so adjudged in the time of the Plantagenets and the Tudors ; but we say it is good law, also, because it is reasonable and just; because every subsequent authority in England, such as Hale, I Hale, P. C. (Am. ed.) 507; East, 2 East, P. C. 654; Russell, 2 Russ, on Crim. (6th Am. ed.) 89, has adopted and approved it; because it has been affirmed by modern judicial opinion in England ; Wilkin’s Case, 2 Leach, 586 ; because it has already been recognized in the United States ; Ward v. The People, 3 Hill, 396; and because it thus bears that genuine stamp of venerable time, which .consists, not in the antiquity of date — for there may be old errors as well as new ones — but in having stood the test of the scrutiny of many successive ages. . .. .
*458 “If, looking beyond the mere question of property, we pass to considerations of public policy, this may be regarded in two points of view, one, of convenience in the administration of justice, the other, of higher ethical relation. As to the former point, it is not easy to conceive anything which would more seriously embarrass the public ministers of justice, and obstruct its administration, than if it were held that any ele-' ment of illegality in the acquisition of property rendered it incapable of being the subject of larceny, and if, as a consequence, the necessity followed, in every case, to go into the inquiry how the party complaining acquired the property.
“As to the latter point, if the question be put in the form most favorable to the argument for the defendant here, it stands thus : of the alternative moral and social evils, which is the greater — to deprive property unlawfully acquired of all protection as such, and thus to discourage unlawful acquisition but encourage larceny; or to punish, and so discourage larceny, though at the possible risk of thus omitting so far forth to discourage unlawful acquisition? The balance of public policy, if we thus attempt to estimate the relative weight of alternative evils, requires, it seems to us, that the larceny should be punished. Each violation of law is to be dealt with by itself. The felonious taking has its appropriate and specific punishment; so also has the unlawful acquisition.” (Commonwealth v. Rourke, 10 Cush. 897.)
Such is the law both of larceny and embezzlement in the United States. (State v. Cloutman, 61 N. H. 143; Commonwealth v. Smith, 129 Mass. 104; Commonwealth v. Cooper, 130 id. 285; Woodward v. The State, 103 Ind. 127, 2 N. E. 321; State v. O’Brien, 94 Tenn. 79, 28 S. W. 311, 26 L. R. A. 252; People v. Hawkins, 106 Mich. 479, 64 N. W. 736; The State v. Shadd, 80 Mo. 358; Miller & Smith v. The Commonwealth, 78 Ky. 15, 39 Am. Rep. 194; The State of Iowa v. May, 20 Iowa, 305; Bales v. The State, 3 W. Va. 685; State v.
Crime does indeed beget crime, but such progeny cannot justify itself before the law by its hideous and hateful parentage.
Appellant invokes the aid of that principle of law ■which refuses to enforce contracts growing out of violations of law, and cites the decisions of this court to that effect, up to and including Alexander v. Barker, 64 Kan. 396, 67 Pac. 829. Such cases have no application to prosecutions for embezzlement, since a criminal action may be maintained, even though a civil remedy be denied ; and if such authorities were pertinent, they have no application to the facts of this case.
In this case the appellant charged himself with the money collected on his books as treasurer of the city, and accounted for it to the city in his quarterly statements. This was ample proof of the fact that he received the money as city treasurer, that the property in the money had passed to the city, and that he held it a.s such. The money was in the possession of the city to the same extent as if it were in its vaults. It was not mere plunder in his hands, to be divided or accounted for. This being true, authorities are abundant that the city would not need to rely upon the illegal transaction to recover the money, and that appellant could not defeat an action for that purpose by setting up such a defense.
“It has been observed that the test whether a demand connected with an illegal act can be enforced is whether the plaintiff requires any aid from the illegal transaction to establish his case.” (W. H. Gilliam, Ex’r, v. W. T. Brown, 43 Miss. 641, 660.)
“That principle is that where an officer has actually received public revenue, either under an invalid au*460 thority or without any color of authority, he and his sureties are estopped to resist a recovery of the money thus received.” (Galbraith v. Gaines, 10 Lea [Tenn.] 568.)
See, also, Placer County v. Astin, 8 Cal. 303; Evans v. City of Trenton, 24 N. J. L. 764; Brooks v. Martin, 2 Wall. 70, 17 L. Ed. 732; Owen v. Davis, 1 Bailey (S. C.), 315; Baldwin Brothers v. Potter, 46 Vt. 402; Norton v. Blinn, 39 Ohio St. 145; Roby v. West, 4 N. H. 285, 17 Am. Dec. 423; Daniels et al. v. Barney, Same v. Wells, 22 Ind. 207; Kiewert v. Rindskopf, 46 Wis. 481, 1 N. W. 163, 32 Am. Rep. 731; First Nat. Bank v. Leppel, 9 Colo. 594, 13 Pac. 776; 1 A. & E. Encycl. of L. (2d ed.) 1088; 15 A. &. E. Encycl. of L. (2d ed.) 1098; The State v. Spaulding, 24 Kan. 1; Hardy v. Jones, 63 id. 8, 64 Pac. 969, 88 Am. St. Rep. 223.
Many other questions are presented by counsel for appellant in their elaborate and able brief, and some of the matters here discussed are presented in several aspects. Each question and argument has received the attention the importance of the case demands.
The judgment of the district court is therefore affirmed.