| Ill. | Jun 13, 1885
delivered the opinion of the Court:
This was an indictment against Edward P. Stoker, in the circuit court of Jackson county, for larceny, under section 74, chapter 38, of the Revised-Statutes of 1874, which declares: “Whoever embezzles, or fraudulently converts to his own use, or secretes with intent to embezzle or fraudulently to convert to his own use, money, goods or property delivered to him which may be the subject of larceny, or any part thereof, shall be deemed guilty of larceny. ” On a trial before a jury the defendant was found guilty, and his term of imprisonment was fixed at one year in the penitentiary.
The facts relied upon to sustain the conviction may be stated in a few words. In 1882 the defendant, Stoker, was a constable in Jackson county. Aultman, Miller & Co. obtained judgments against William Spence, Jr., upon which executions were issued, and placed in the hands of the defendant, as constable, for collection. In the month of September of that year the defendant collected on the executions $211.50, for which he gave his receipt as constable. The money collected the defendant failed to pay over.
Several questions have been discussed in the argument, but the principal point in the case is, whether, under the facts, the defendant was liable to be indicted and convicted under section 74 of the Criminal Code, heretofore set out. It will be observed that a constable is not mentioned in this section of the statute. It will also be found, upon an examination of section 79 of the same chapter of the statute, that said section in express terms includes constables. It is as follows: “If any attorney at law, justice of the peace, constable, * * * or other person authorized by law to collect money, shall fail or refuse to pay over any money collected by him, less his proper charges, on demand by the person entitled to receive the same, or his agent duly authorized, he shall be fined, ” etc. There can be no doubt in regard to the fact that the defendant was liable to be prosecuted and convicted under this section of the statute. He was a constable, and in his official capacity as such he collected money, and failed to pay it over. His case falls directly within the terms of this section of the statute. It is true that the word “whoever,” used in section 74, has a broad and comprehensive meaning; but at the same time, it is unreasonable to believe that the legislature intended that a constable should be prosecuted under both sections of the statute. Under section 74 the offence consists of fraudulently converting to his own use, etc., money or property delivered to the person charged with the offence. Here, the money wras not delivered to the defendant, within the meaning of the statute. It was collected by him, in his official capacity as constable, upon certain executions which came into his hands as an officer. It can not be said that Aultman, Miller & Co. delivered the defendant money, nor is it accurate to say that William Spence, the person against whom defendant held the executions, delivered him money. If the defendant under the executions had levied upon property, and sold and converted it into money, as a constable is required to do under the statute, it would not, under such a state of facts, be correct to say money had been delivered to him, but, on the other hand, the proceeds of the sale would be money collected by him. Nor can the fact that the money wras collected without a levy upon property, make any difference. It was still money collected.by him. If we are correct in this, the defendant did not fall within the terms of section 74, and was not liable under that provision of the statute.-
The judgment of the circuit court will be reversed and the cause remanded.
Judgment reversed.