Crawford v. The State

• Decision Date: 26 June 1900
• Docket Number: 19,211
• Parties: Crawford v. The State
• Court: Indiana Supreme Court

57 N.E. 931

155 Ind. 692

Crawford v. The State

No. 19,211

Supreme Court of Indiana

June 26, 1900

Rehearing Denied Jan. 29, 1901.

From the Lake. Circuit Court.

Affirmed.

A. F Knotts, for appellant.

W. L Taylor, Attorney-General, J. O. Bowers, Merrill Moores and C. C. Hadley, for State.

OPINION

Monks, J.

The appellant, a justice of the peace of Lake county, Indiana, was indicted for embezzlement under § 2020 Burns 1894, § 1943 R. S. 1881 and Horner 1897. The indictment was in four counts and charged the embezzlement of fines amounting to $ 500, assessed in criminal prosecutions and received and held by appellant by virtue of his office of justice of the peace. Appellant was tried and convicted on the third count, the other counts having been quashed by the court.

The fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth and eighteenth errors assigned are causes for a new trial, and such assignments of error, therefore, present no question for review in this court. Zimmerman v. Gaumer, 152 Ind. 552, 53 N.E. 829; Burnett v. Milnes, 148 Ind. 230, 46 N.E. 464.

It is claimed that the said third count is bad because: (1) It shows that the demand was made by Charles B. Lockhart, Deputy Attorney-General; and (2) it is not alleged in said count that the defendant had or held, on the first Monday of July, 1897, more than three times the amount he would receive as mileage under § 1516 Burns 1894, § 1448 R. S. 1881 and Horner 1897.

The Attorney-General in person or by his deputies and assistants is authorized to demand and recover from justices of the peace fines assessed in criminal prosecutions which they have received and hold in their official capacity and have failed to pay over to the county treasurer as required by §§ 1515, 1516 Burns 1894, §§ 1447, 1448 R. S. 1881 and Horner 1897.

Courts will not take judicial notice of the official character of the deputies or assistants of the Attorney-General. 1 Greenleaf on Ev. § 6; 17 Am. & Eng. Ency. of Law (2nd ed.) 919; Slaughter v. Barnes, 3 Marshall (Ky.) 412, 13 Am. Dec. 190, and note p. 192. No question, therefore, of the official character of said Lockhart, when he made the demand alleged, is presented by the motion to quash. Whether or not he was Deputy Attorney-General as alleged was a question of fact to be established at the trial of the cause.

It is alleged in said third count that the demand was made September 14, 1897, for the money collected before July 5th, the first Monday in July, 1897.

It is provided by statute that "Each justice of the peace shall, on the first Monday in January, and on the first Monday in July of each year, make a report to, and pay over to, the county treasurer of his respective county all fines collected by him since his last previous report, verifying such report by oath: Provided, that at the time of making such report the amount of the fines collected shall exceed three times the amount that he would be entitled to draw from the county as mileage in making such report. Where the amount of fines collected by any justice of the peace does not exceed three times the amount that he would be entitled to as mileage in making such report, he shall report by writing to the treasurer of the county the exact amount of fines collected by him, and retain the same until the next semiannual settlement: Provided, that at the expiration of his term of office he shall make full report, and pay over to the treasurer all fines collected by him and not heretofore paid." §§ 1515, 1516 Burns 1894, §§ 1447, 1448 R. S. 1881 and Horner 1897.

It is the duty of the Attorney-General under § 7692 Burns 1894 (§ 9, Acts 1889, p. 126) to compel the payment by justices of the peace of all fines received by them in their official capacity which they have failed, neglected or refused to pay over to the proper county treasurer, as required by said §§ 1515, 1516, §§ 1447, 1448, supra. State v. Denny, 67 Ind. 148; Carr v. State, 81 Ind. 342.

Section 2020 Burns 1894, § 1943 R. S. 1881 and Horner 1897, provides that any justice of the peace who shall fraudulently fail or refuse, at any time during the term for which he was elected, when legally requested by the proper person or authority, to account for, deliver and pay over to such person all moneys that may come into his hands by virtue of his office, shall be deemed guilty of embezzlement.

It will be observed that the statute requiring the semiannual report from justices of the peace, provides for such report and for the paying over to the county treasurer of all funds collected by him since the last report. The exception that the report is not required if the fines collected shall not exceed three times the mileage he would be entitled to draw from the county, is not so incorporated in the statute as to become a part of the enacting clause thereof, § 1515 § 1447, supra.

In a suit by the Attorney-General, on the official bond of appellant as justice of the peace, to recover said fines, it would not be necessary to negative in the complaint the exception mentioned in said proviso or prove it at the trial, because the same is not a part of the enacting clause and is therefore a matter of defense. Black on Interpretation of Laws, p. 272; Sedgwick on Stat. Const. (2nd ed.) 50; Trustees of First Baptist Church v. Utica, etc., R. Co., 6 Barb. 313; Vavasour v. Ormrod, 6 Barn. & Cress. 430.

The same rule prevails in criminal pleading in this State. Hewitt v. State, 121 Ind. 245, 246, 247, 23 N.E. 83, and cases cited; Mergentheim v. State, 107 Ind. 567, 8 N.E. 568; State v. Maddox, 74 Ind. 105; State v. Stapp, 29 Iowa 551; Gillett's Crim. Law, § 132a; 1 Bishop's Crim. Proc. § 631 et seq.; Wharton's Crim. Pl. & Pr. (9th ed.) §§ 238, 239.

If in such civil action by the Attorney-General it is not necessary to negative the proviso, it is evident that it is not necessary to negative the same in the indictment in this case. It follows that the court did not err in overruling appellant's motion to quash the third count of the indictment.

It is assigned as a cause for a new trial that the court erred in giving instructions 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18 and 19. To render this cause for a new trial available all the instructions named must be erroneous. Masterson v. State, 144 Ind. 240, 246, 43 N.E. 138 and cases cited; Conrad v. State, 144 Ind. 290, 297, 43 N.E. 221; Lawrence v. Van Buskirk, 140 Ind. 481, 482, 40 N.E. 54.

It is not claimed by appellant that there was any error in giving instructions 1, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17 and 18. Said cause for a new trial must therefore fail.

The assignment of the court's refusal to give the instructions requested by appellant, as a cause for a new trial, was also joint as to all instructions refused. As it is not claimed that all refused were correct, for the same reason this cause for a new trial presents no available error. Conrad v. State, 144 Ind. 290, 297, 43 N.E. 221.

Misconduct of a juror is assigned as a cause for a new trial but as the affidavits filed in support thereof are not contained in a bill of exceptions, there is nothing in the record to sustain the same. Siple v. State, 154 Ind. 647, 57 N.E. 544; Graybeal v. State, 145 Ind. 623, 44 N.E. 641, and cases cited; Reed v. State, 147 Ind. 41, 48, 46 N.E. 135.

That the verdict is contrary to the evidence, and that the same is contrary to law are assigned as causes for a new trial. It is insisted that there is no evidence that Charles B. Lockhart was Deputy Attorney-General as alleged in the indictment. Said Charles B. Lockhart testified at the trial in substance that he was Deputy Attorney-General of the State of Indiana and had been since January 1, 1896; that from January 1, 1896, until the trial of said cause he was the only traveling deputy of the Attorney General's office; that he was acting in the capacity of Deputy Attorney-General when he examined the dockets of appellant and made the demand alleged in the indictment. It is clear under the authorities that this insistence of appellant can not be sustained. 1 Greenleaf on Ev. (16th ed.) § 563g; 1 Phillips on Ev. (4th Am. ed.) 592 and notes, (5th Am. ed.) 489, and notes; Wharton on Ev. § 164; Wilcox v. Smith, 5 Wend. 231; Commonwealth v. McCue, 82 Mass. 226; Commonwealth v. Kane, 108 Mass. 423.

Appellant contends that the law only provides for one Deputy Attorney-General. There is nothing in the law, creating the office of Attorney-General and prescribing his duties, which fixes the number of his deputies. His right to discharge his official duties by deputy is recognized by statute. (§§ 7689, 7694 Burns 1894.) And it is provided that he shall have such deputies as the Governor, Secretary and Auditor of State may deem necessary. § 7696 Burns 1894, § 5671 R. S. 1881 and Horner 1897. The salary law of 1895 (Acts 1895, § 6, p. 320, § 6410 Burns Supp. 1897), fixes the salaries for two deputies for the Attorney-General. The General Assembly at each session since 1895 has made provision for the payment of two deputies for the Attorney-General. Under such circumstances it is evident that appellant can not in this case question the right of the Attorney-General to have two deputies.

Appellant insists that the evidence discloses that he paid over to Lockhart, deputy Attorney-General, and other persons authorized by law to receive the same, more money than he received for fines prior to the first Monday in July, 1897. Under the law appellant was only required to pay over to the Deputy Attorney-General, in September, 1897, when the demand was made, fines collected by him prior to the first Monday in July, 1897, and the indictment only...