20 Haw. 391 | Haw. | 1911
OPINION OF THE COURT BY
Tbe defendant was indicted for embezzling $285, bail money forfeited in the district court of Honolulu, the property of the
The defendant demurred to-the indictment on the grounds, in substance, as .follows: (1) that it does not show that the money was the property of the Territory or of any political or municipal corporation thereof; or (2) that the City and County of Honolulu is a political or municipal corporation or subdivision of the Territory; or (3) that the defendant is a public officer who by law, regulation or appointment by law is charged with the safe-keeping, transfer or disbursement of any money belonging to the Territory or any political or municipal corporation or subdivision thereof; (4) that there is no law authorizing or imposing the duty upon the second, clerk of collecting and receiving fines and costs and other money on account of the City and County, or which prescribes a second clerk of the district court who is by law charged with the duty of collecting or receiving money on account of the City and County; (5) that the district magistrate is the only person having authority or charged with the duty of receiving or paying such moneys on account of the City and County; (6) that there is no law for the appointment of a second clerk or charging him with the safekeeping of the public money or imposing upon him the duty or authorizing him to receive the same.
The trial court reserved for the consideration of this court the question whether the demurrer shall be sustained.
In argument the defendant abandoned the second ground of his demurrer.
We will first consider the defendant’s contention that under Act 152 S. L. 1909, the magistrate could not impose upon the second clerk of his court the duty of receiving this money, Sec. 1 of the act reading as follows: “All moneys paid for costs in
In Territory v. Wright, 16 Haw. 123, the defendant was indicted under Secs. 157 and 158 P. L., being in substance the same as Secs. 2965 and 2967 R. L., the latter section having been amended to include embezzlement of county money. ITe had been employed in the office of the superintendent of public works as chief clerk and clerk of market, receiving his appointment from the superintendent, the legislature having made an appropriation for salary of chief clerk of market. His contention that his employment was not authorized by law and that no law authorized the entrusting him with the public money was not sustained. It was held (128) that the defendant was not the employee of the superintendent but a territorial employee within the class designated in Sec. 158 P. L., and that the statute did not require for the offense of embezzlement of public funds that “there shall be an express statute authorizing his
In U. S. v. Smith, 124 U. S. 525, a case much relied upon by the defendant, it was held (532) that a clerk in the office of the collector of customs, appointed by the collector and holding his position at the will of the collector, “discharging only such duties as may be assigned to him by. that officer, comes neither within the letter nor the purview of the statute,” and that in the absence of any act of congress “making a clerk of the collector a fiscal agent of the government, and bringing him within the class of persons charged with the safe-keeping of any public moneys,” the clerk was not indictable for embezzling such money. The case was also relied upon, together with Moore v. State, 53 Neb. 831, and State v. Meyers, 56 Ohio 340, both of which are cited by the defendant in the present case, in Territory v. Richardson, supra, which held that these cases wore not in conflict with the ruling that “the defendant could be charged by regulation or appointment as well as by law with the safe-keeping, transfer or disbursement of moneys.” In U. S. v. Smith, the indictment alleging that the defendant was “charged by an act of congress with the safe-keeping of the public moneys,” the only question presented was whether there was such an act. The rulings in the Wright and Richardson cases are conclusive against the defendant’s claim of exemption from liability on the ground that no statute authorized the magistrate to impose upon his second clerk the duty of collecting fines, etc., or authorizing the employment of the second clerk in charge of such money. We are unable to sustain the defendant’s contention that as no statute authorized the magistrate to appoint a second clerk, for whose salary the legislature in Act 122. S. L. 1909 appropriated a monthly salary of $85 to be paid by the county, the clerk should have been appointed as a county officer under Sec. 81, Act 118 S. L., 1901, Incorporating the City and County of Honolulu, which requires that “The Mayor, with the approval of the Board of Supervisors shall appoint all officers of the City and County
But the defendant urges that being appointed by the magistrate of the district court, which is a territorial and not a municipal court, he cannot be charged, as an employee of the county under Sec. 2967 R. L., reading as follows: “Whoever, being an officer or employee of the Territory or of any political or municipal corporation or subdivision thereof, is guilty of embezzlement of any money, note, or other effects or property belonging to the Territory or to such political or municipal corporation or subdivision thereof shall be punished by imprisonment at hard labor for not more than ten years, or by fine not exceeding five times the value of the thing or property embezzled.”
In taking the forfeited bail money by direction of the magistrate, as alleged in the indictment, “on account of the said City and County of Honolulu,” he was not acting for the Territory but for the county and to that extent he was employed, in the service of the county and is chargeable as .its employee in respect of county funds placed in his charge for transmitting to
The defendant, in taking for and in behalf of the county, and by dii*ection of the magistrate, the forfeited bail money which was the property of the county from the time of its forfeiture, was acting as the receiver, agent, bailiff or employee of the county in respect of that- money, and although the county did not directly authorize, this to be done, by accepting such money when paid to its treasurer it indirectly consented to the clerk being entrusted therewith, or rather, as such acceptance would require evidence, the lawfulness of the direction of the magistrate that the clerk should have the custody of the money of the county is presumed, as a matter of law, to have been acquiesced in or consented to by the county, the direction being lawfully given the consent to the custody follows. In the Wright and Richardson cases, supra, there was embezzlement of territorial money which had been entrusted to the clerk of waterworks, as a territorial officer, by the regulation or appointment of the superintendent of public works without statutory authority, and this, notwithstanding the fact noticed in Superintendent of Public Works v. Richardson, 18 Haw. 523, 525, which was an action on the official bond of the clerk, that “There is nothing in the designation of ‘clerk’ to warrant the inference that he was to act as assistant to the superintendent of waterworks in collecting water rates, nor do the ordinary definitions of ‘clerk’ include one entrusted with the. collecting and handling of funds.”
Oases are not in point, or else are against our precedents cited, in which the statute explicitly vested in officers other than the defendant the authority to collect fines or other .public money, which by usage had been paid to the defendants, while our statute (Act 152 S. L. 1909), while recognizing the right of the officers therein named to collect the fines, etc., does not impose upon them the duty of doing so. When such fines, costs and forfeited bail money are collected, whether by the magistrate, who is a territorial officer, or by his second clerk and appointee, each of them acts in such case in a dual capacity, or one as a county officer and the other as a county employee. To construe the statute .so narrowly that the defendant could not be held for embezzling this money of the county because he had not been specifically authorized, by statute to collect the money or because the county had not explicitly entrusted him with it would be a miscarriage of justice, which we think is not required by principle or precedent.
The prosecution contends, — and there are decisions. of eminent courts which support the contention, — that “One who has collected money under color of authority cannot defend against a prosecution for embezzlement on the ground that he was not authorized to collect it.” This appears to be the view which was taken in People v. Hawkins, 106 Mich. 479; State v. O’Brien, 94 Tenn. 79; State v. Spaulding, 24 Kans. 1; State v. Pohlmeyer, 59 Ohio 491; Ex Parte Ricord, 11 Nev. 287; State v. Findley, 101 Mo. 217; 1 Wharton’s Crim. Law, §1025; Bishop on Statutory Grimes, 3 ed,., §271.
The doctrine of estoppel as thus set forth, when confined to