State v. Stone

40 Iowa 547 | Iowa | 1875

Cole, J.

The indictment charges that on January, 1872, the defendant “ was legally elected, qualified and acting treasurer of Sioux county, Iowa; that he was such officer, and acted in such capacity for the years 1870 and 1871, and up to April 10, 1872,” and then proceeds to charge in proper form the facts constituting the crime of embezzlement of public money by officers, as defined by Code, Section 3908. Upon the trial, the district attorney in various forms offered to prove that the defendant was the acting county treasurer of Sioux county, at the time the moneys were embezzled. This the court refused. The district attorney also asked an instruction to the effect that if the jury believed the defendant was the.acting county treasurer for the years 1870 and 1871, and while such, took the moneys as charged, and converted the same to his own use, they should find him guilty. This was refused by the court. In each and all of these rulings the court was very manifestly in error. If one holds himself out to be an officer, or acts.as an officer de facto, he cannot be heard to object that lie is not an officer de jure, because his acting in the office estops him to deny his right to it, even when indicted for malfeasance. 1 Bish. on Cr. Law, § 917, and cases cited in note 3; 2 Whart. on Cr. Law, § 2533, and cases cited in note t. (See as to the effect of this reversal, Code, 4539.)

Beversed.