85 P. 104 | Idaho | 1906
The prosecuting attorney of Bingham county charged appellant with the crime of embezzlement; the charging part of the information is as follows: The said Peter A. Steers, at and within Bingham county and state of Idaho, and within three years prior to the filing of this information, being then and there an officer of Bingham county, staté of Idaho, charged by law with the receipt, safekeeping and transfer of public moneys, to wit: The sheriff in and for Bingham county, state of Idaho, and by virtue of his said office, then and there a receiver of public moneys, to wit, a collector of licenses or license taxes, and authorized by law to receive said moneys, and then and there acting as such officer, did then and there willfully, unlawfully, fraudulently and feloniously, without authority of law, appropriate to a use and purpose not in the due and lawful execution of his trust, to wit, to his own use, certain money paid to and received by him while acting in his official capacity as said sheriff, to wit, the sum of $500, lawful money, the same being so paid to and received by him for said Bingham county, state of Idaho, by and from E. C. Shearer on or about the twenty-third day of May, 1904, for a license to sell spirituous, vinous, malt and intoxicating liquors within Bingham county, state of Idaho. To this information a demurrer was filed, to. wit: “1. The facts therein stated do not constitute a public offense. 2. Said information does not substantially conform to the legal requirements of séctions 7677, 7678 and 7679 of the Revised Statutes of Idaho, particularly in this, to wit: (a) Said information does not eon
In the minutes of the court of date April 19, 1905, it is shown that a motion to set aside the information was submitted to the court and overruled and on the same day the demurrer was overruled. On the twenty-fifth day of April, 1905, a motion for a continuance was denied. On the same day a motion for change of venue was submitted to the court and granted. On the fourth day of May, in Bannock county, a motion and affidavit for a continuance of the cause, also a motion to postpone the time of trial to a later date; both of these motions were overruled. On the same day a jury was impaneled, and on that and the succeeding day a trial was had which resulted in a verdict of guilty as charged in the information, and on the eleventh day
Counsel for appellant insists that the demurrer to the information should have been sustained, as it does not state whether the money claimed to have been embezzled was the property of Bingham county or of E. C. Shearer, and does not in any manner comply with sections 7677 and 7678, of the Revised Statutes of Idaho. Subdivision 2, section 7677, provides: “A statement of the acts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.” The information informs the defendant that he, as sheriff of Bingham county, has received $500 from E. C. Shearer for a license to sell spirituous, vinous, malt and intoxicating liquors within said Bingham county, state of Idaho: that he has, as such sheriff, unlawfully, willfully, fraudulently and feloniously appropriated to his own use such sum of money; that such willful, unlawful, fraudulent and felonious appropriation was made about the twenty-third day of May, 1904. An examination of section 7678 will disclose that the information fully complies with its requirements. The purpose of these two sections of the statute, it seems, should be so easily understood, and a fair consideration of them, it occurs to us, is that when the indictment or information informs the accused that on or about a date specified, the grand jury by indictment, or the prosecuting attorney by information, charges the accused of some crime known to our statute, that the alleged unlawful act was done willfully, unlawfully and feloniously, the language used in the charging part of the complaint, information or indictment indicating to the accused the particular crime with which he is charged, if the instrument sufficiently informs the accused of the time, place, circumstances and conditions of his alleged unlawful act, and that it is unlawful, wrongful, malicious and felonious, or other words used by the statute to indicate the particular crime charged, then the accused is informed what he must prepare to meet on the trial. We do not find the information in the case at bar lacking in any
We find no error in' the order of the court overruling the demurrer. (See Brady v. Territory, 7 Ariz. 12, 60 Pac. 698, People v. Cobler, 108 Cal. 538, 41 Pac. 401; People v. Jose De La Guerra, 31 Cal. 416.) It is also urged by counsel for appellant that the court erred in ‘ ‘ denying the defendant time to prepare for trial.” It is shown that the case was removed from Bingham to Bannock county for trial on application of appellant, and that the clerk of Bingham county had complied with section 7773 of the Revised Statutes, by transmitting all the papers and necessary records to the clerk of Bannock county. Counsel for appellant say “defendant did not know that they were received by the clerk of the court of Bingham county until the second day of May, 1905, and the court, at 7:30 o ’clock P. M. of May 2d, set the case for trial on the fourth day of May, 1905, at 10 o ’clock A. M., thus giving the defendant one day in which to get ready for trial, and that the defendant is entitled to at least two days in which to prepare for trial.” Section 7790 of the Revised Statutes provides: “After his plea, the defendant is entitled to at least two days to prepare for trial.” It is shown that the plea of not guilty was entered in the district court of
Counsel for appellant next urge as error the refusal of the court to sustain the objection of defendant “to the appearance of Siandrod & Terrell, as counsel for the state, as there is no law authorizing such appearance by private counsel in criminal actions, and it is against public policy.” Our attention is called to Conger v. Board of Commissioners, 5 Idaho. 347, 48 Pac. 1064. This case holds that individual members of the board of county commissioners cannot make a contract to bind the county. “ It is the county commissioners acting as
The next assignment is based on the ruling of the court to the following questions: “Now, I will ask you, witness, to examine that record again, and say whether or not it contains any items of moneys received for liquor license issued to the Montana saloon, November 1, 1904!” The record shows that the witness was one W. W. Kinney, who was deputy sheriff under appellant, and as such deputy issued the receipt for the money claimed to have been embezzled by appellant; that he turned the check given him by E. C. Shearer for license over to appellant the same night or the next morning after it was received by him. The record referred to in the question was what is known as the “license register.” After examining the record, witness testified that “there was no record in the book for the $501 for liquor license for Mr. Shearer; the receipt given Mr. Shearer by Kinney had been introduced in evidence by the prosecution; other questions of similar import, which referred to other licenses were asked, objected to by appellant, and the witness permitted to answer, all of which is alleged as error prejudicial to appellant. It is apparent that the purpose of the examination of the witness who testified that he was the deputy sheriff at the time and before the alleged embezzlement of the $501, paid by Shearer for license, and was familiar with the record of licenses kept by the sheriff, and that it was the only book' kept for “recording licenses” while he was deputy sheriff, was to show that the book did not contain an account of certain licenses. The entire record was in evidence, and counsel for appellant had the opportunity to examine it and ascertain whether the witness testified truthfully or otherwise, and
It is next insisted that the court erred in permitting George S. Gagon, who it was shown was clerk of the hoard of commissioners of Bingham county during the entire term of appellant as sheriff of that county, and for a long time prior thereto, to answer the following questions: “What was your custom, Mr. Gagon, in' receiving bonds of this character; what did you do with them ? ’ ’ He answered that he delivered them in the sheriff’s office, and continued: “But I can’t say I delivered this bond there.” It was perhaps immaterial, as well as incompetent, what his custom may have been, but we cannot see how the appellant could be prejudiced by what he said his custom was, especially when he says he can’t say he delivered the one in question there. Appellant urges that the court should have sustained the objection “to the introduction of the minute record of the board of commissioners, for the reason that these entries were made after defendant had retired from office and could not bind him, as he was not even present when they were made, and they tend to prejudice the minds of the jury against the defendant. ’ ’
The record introduced is as follows, in the matter of the shortage of Peter A. Steers, former sheriff: “On this day it was ordered by the board of county commissioners that R. M. McCracken, county attorney, ascertain the amount of money paid to Peter A. Steers for liquor license, and which has not been paid over to the county by Steers, and to demand the amount of money so ascertained. Ordered that if the amount of liquor license money collected by Steers is not turned over to the county upon demand, the county attorney is ordered, authorized and directed to bring an action for said board of
We know of no provision of our statute that requires the presence of the sheriff or any other officér when the county commissioners are making up their record. This was simply an order requiring the county attorney to ascertain whether appellant was delinquent in the settlement of his accounts, and if so, he was required by the order to enforce collection by suit against appellant and his bondsmen. How could this record prejudice jurors against appellant ? If the county attorney found no deficiency, his duty was easy; he had only to report that fact to the commissioners, and his labors Avere ended. The introduction of this record may have been immaterial, but certainly not prejudicial. It is insisted that the court erred in not permitting County Attorney Mc-Cracken to answer the following questions on cross-examination: “Q. Didn’t they (meaning the agent of the bonding company, defendant and some citizens of Blackfoot) make a request of you to let this matter stand until the civil suit was decided to see whether he (Steers) was owing Bingham county anything? Q. Didn’t Mr. King as agent of the bonding company, and also several citizens in Blackfoot, request you to delay proceedings until matters were settled in the civil court?” In Avhat way could it benefit appellant if the agent of the bonding company and every citizen of Blackfoot made the request of the Ayitness as above indicated? Could or would it excuse him from the performance of his sworn duty? If he believed any officer of his county was guilty of the crime of embezzlement, or any other crime, the law fixes his duty and the agent of'the bonding company, the citizens of Blackfoot, nor even the board of commissioners can in any way control his action. There was no error in sustaining an objection to this question. It is shown that appellant offered to show by E. H. Watson, a practicing attorney of this court, that said Watson was attorney for defendant, and advised the defendant not to turn over the money in question to the county unless the court should hold it to be county money, and in support of this advice, defendant offered in evidence
It is next urged that the court erred in not admitting in evidence the judgment-roll in a certain ease theretofore tried in the district court of Fremont county, wherein it is claimed that the court found that money paid to the sheriff under similar circumstances to the case at bar was not the property of the county. We know of no rule of law that would make such evidence competent. It might be available in an effort to induce the court to instruct the jury that such money was not the property of the county, but, even then, the court might take a different view of the law and refuse to give such instructions; then the question could be presented to this court as an error of law occurring at the trial, but if appellant desired to show by this record that he was withholding the payment of the money without criminal intent, he did not bring himself within the rules of law prescribed for the introduction of this evidence, and the record would not have aided him owing to the difference in the facts. In justice to the learned judge who presided over the court at the time the findings and judgment above referred to were made and entered, we feel it our duty to.say the facts in that case were widely different from the one at bar. Neither the county nor state was a party to the litigation; it was a