13 Kan. 274 | Kan. | 1874
The opinion of the court was delivered by
“ If any clerk, apprentice or servant of any private person, or of any co-partnership, * * * or if any officer, agent, clerk or servant of any incorporation, or any person employed in such capacity, shall embezzle or convert to his own use, or shall take, make way with, or secrete, with intent to convert to his own use, without the assent of his employer, any goods, rights in action, or valuable security, or effects whatsoever, belonging to any person, co-partnership, of corporation, which shall have come into his possession or under his care by virtue of such employment or office, he shall, upon conviction thereof, be punished in the manner prescribed by law for stealing property of the kind or value of the articles so embezzled, taken or secreted.” * * *
Is the county treasurer such an officer as is contemplated by the statute? It is urged with great ability and ingenuity that this question must be answered in the negative on the ground that a county is not acorporation within the meaning of the term as used in the act, and that this is apparent from the language used; that the section provides that the embezzlement must be without the assent of the employer, and that the treasurer
A sketch of the legislation upon the subject of embezzlement is given by Mr. Bishop in the secbnd volume of his work on Criminal Law, from which it will be seen that from the time our ancestors thought it necessary to legislate upon this subject that the law has been gradually enlarged in its scope as from time to time society required such action. The section of our statute quoted above .embraces within its terms a much greater variety of classes of persons who can commit the crime of embezzlement, and a much greater variety of circumstances under which it can be committed, than was provided for in the older statutes in which the law on this subject had its origin, and in some respects than any of the statutes of other states that have come under our notice. It is not necessary to point out these changes except in one instance, and that is the substitution of the word “incorporation” in the General Statutes of 1868 for the phrase “incorporated company” in the Compiled Laws of 1862, (§82, p. 30Í,) and the continued use of this word in the laws of 1873, while in this last statute the word “corporation” is added in describing the parties whose goods, etc., may be embezzled. This change must have been made for a purpose, and in our judgment it was intentionally made so as to include many persons who were not before within its letter. The substituted word in the General Statutes is an awkward
Nor does the giving of a bond indicate a purpose not to secure the public interests by punishing those who wrongfully execute the public trusts confided to them. Such bonds are frequently given by the employes of private persons, and yet that would not be claimed as exempting them from the penalties of the law of embezzlement. We cannot perceive why a bond should have any other effect when required by law than when exacted by contract. This view is strength1
It is argued that the treasurer cannot be included because he has no “ employer,” and by the statute the offense can only be committed against the assent of the employer. One thing is certain, that the treasurer is employed in his office, on business no.t his own, and not volunteered, but in pursuance of certain well-known conditions. All these facts constitute an employment, and also an employer and employe, and while we shall not attempt to define who is the employer, we are satisfied that there is one, and the fact that that employer cannot authorize the illegal use of the funds in the treasurer’s hands, only simplifies' the necessary testimony, but does not change the construction of the law. The truth is, that in the original English, statute the word was a necessary one, and has been retained in all the changes, although in some respects its place is an awkward one. It still retains its place in our statute, and if there is any supposable case where the word embezzlement itself does not presuppose the non-assent of the principal or employer, it must be in a case where the employer is legally incapacitated from giving such assent.
“The statute defining the crime and fixing the punishment for embezzlement was designed to punish the fraudulent or illegal conversion of money or property entrusted to the care of the persons named in the statute, and as a safeguard against such fraudulent or illegal conversion of such property; and when it has been established that the funds or property charged has reached the hands of the officer, .and that the same was not forthcoming when properly or legally demanded, the law presumes an illegal conversion of such funds or property, and the burden of proving the legal use of such property or money is upon the officer”
The last part of this instruction lays down a rule to which we cannot assent. It would be most perilous to an officer who had faithfully discharged responsible duties for a series of years, handling in his official capacity large amounts of money, and who should find at last that there was a deficiency for which he could not account, or replace, although for a sum which, compared with the amounts which had passed through his hands, would be trivial. In such a case, under the instruction given, a jury would be compelled to find a verdict of guilty, although they might believe the man was perfectly honest. Nor is this an extreme case. Much harder ones may readily be imagined. In every case the jury are the sole triers of the main fact of the guilt of the accused, and judges of the testimony establishing each fact necessary to constitute the main fact. The facts are to be proven; what those facts show, is for the jury to decide.. It may be considered law in this country generally, that the burden of proof in criminal cases is on the state, and- that this burden never changes. It is true that there are some decisions seemingly adverse to this opinion, but they are very few, and do not