Heard v. State

• Decision Date: 11 January 1937
• Docket Number: 32234
• Citation: 177 Miss. 661,171 So. 775
• Court: Mississippi Supreme Court
• Parties: HEARD v. STATE

171 So. 775

177 Miss. 661

HEARD v. STATE

No. 32234

Supreme Court of Mississippi

January 11, 1937

Division A

1. INDICTMENT AND INFORMATION.

Indictment against member of county board of supervisors for attempting to defraud county by inducing it to pay money to named persons to whom member knew county was not indebted held not to charge more than one offense, notwithstanding that money was to be paid to more than one person (Code 1930, see. 896).

2. INDICTMENT AND INFORMATION.

In prosecution against member of county board of supervisors for attempting to defraud county by inducing it to pay money to named persons to whom member knew county was not indebted refusal to require State to elect to proceed only on inducement as to one of named persons held not error (Code 1930, sec. 896).

3. CRIMINAL LAW.

In prosecution against member of county board of supervisors for attempting to defraud county by inducing it to pay money to sellers of gravel whom member knew county was not indebted to in amount indicated on "pay roll" submitted by him admission of second pay roll omitting some of names included on first pay roll held not error, since second pay roll was admission by member that first pay roll was not correct (Code 1930, sec. 896),

4. FALSE PRETENSES.

Whether member of county board of supervisors had knowledge that gravel claims of third persons submitted by him were not owing in amounts submitted by him, so as to be guilty of embezzlement under statute, held for jury (Code 1930, sec 896).

5. FALSE PRETENSES.

Member of county board of supervisors who submitted gravel claims of third persons in greater amount than was actually owing thereon would be presumed, in absence of evidence to contrary, to have intended to thereby defraud county, as respects whether member was guilty of embezzlement under statute (Code 1930. sec. 896).

6. CRIMINAL LAW.

Person will be presumed, in absence of evidence to contrary, to intend necessary or natural and probable consequences of his voluntary acts.

7. CRIMINAL LAW.

In prosecution against member of county board of supervisors for wilfully attempting to defraud county, instruction that jury could presume that member of county board of supervisors filed third persons' gravel claims against county in greater amounts than were due thereon, with intent to defraud county, held not error (Code 1930, sec. 896).

8. CRIMINAL LAW.

In prosecution against member of county board of supervisors for attempting to defraud county by submitting third persons' claims for one thousand eight hundred ninety-nine loads of gravel sold county, with knowledge that such amount of gravel was not sold to county, district attorney's argument that no. one testified to hauling one thousand eight hundred ninety-nine loads, Held not error as comment on member's failure to testify (Code 1930, sees. 896, 1530).

HON. J. P. ALEXANDER, Judge.

APPEAL from the circuit court of Hinds county HON. J. P. ALEXANDER, Judge.

S. C. Heard was convicted for attempting to defraud county by inducing it to pay money to named persons to whom S. C. Heard knew county was not indebted, and he appeals. Affirmed.

Affirmed.

M. Ney Williams, of Raymond, for appellant.

Our courts have long held to that old and established rule of the law that no man shall be deprived of his constitutional rights under the law. It is an established principle of the law, and the courts have held for time immemorial, that a defendant cannot be tried on an indictment in one count charging a duplicity of crimes, but that he must be tried for some certain crime alleged to have been committed.

Breeland v. State, 79 Miss. 527, 31 So. 104; State v. Walker, 88 Miss. 592, 41 So. 8; Hill v. State, 72 Miss. 527, 17 So. 375; Freeman v. State, 90 Miss. 315, 43 So. 289; 14 R. C. L. 46; Section 1206, Code of 1930; McQueen v. State, 143 Miss. 787, 109 So. 799; State v. Mitchell, 95 Miss. 130, 48 So. 963; Clue v. State, 78 Miss. 661.

At the proper time, before plea was made by appellant Heard (defendant) to the indictment, the said defendant moved the court that the state be required to elect the charge in said indictment on which defendant should be tried. This motion was overruled by the court, and the state thereby permitted to offer proof, over the objections of defendant, as to each and all of the twenty different crimes charged in said indictment.

It is a well laid down rule of law that in embezzlement cases, where the money is embezzled at various and sundry times, the state is not required to elect, but can proceed to trial and offer evidence of the various crimes of embezzlement if charged in the indictment.

Starling v. State, 90 Miss. 255, 43 So. 952; Davis v. State, 108 Miss. 710, 67 So. 178.

In overruling the motion of defendant requiring the state to elect the charge in the indictment on which said defendant was to be tried, the court erroneously adopted the rule laid down in cases of embezzlement.

Burgess v. State, 81 Miss. 482, 33 So. 499; McEwen v. State, 132 Miss. 338, 96 So. 690; Love v. State, 142 Miss. 602, 107 So. 667; King v. State, 66 Miss. 502, 6 So, 188; Collier v. State, 106 Miss. 613, 64 So. 373; Floyd v. State, 148 So. 226.

The district attorney in his closing argument for the state commended directly on the failure of appellant (defendant) Heard to testify. In his said argument as shown by special bill of exceptions taken thereto the district attorney used the following language to wit: "These truck drivers said that it was impossible to haul one thousand eight hundred ninety-nine loads. Did anybody come before this jury and say that they did haul one thousand eight hundred ninety-nine loads of gravel in July, 1935? I say, did anybody come and say it?" This was a direct comment on the failure to the defendant to testify in this case, and called the attention of the jury to the fact that he did not testify.

Section 1530, Code of 1930; Yarbrough v. State, 70 Miss. 593, 12 So. 551; Gurley v. State, 101 Miss. 190, 57 So. 565; Smith v. State, 87 Miss. 627, 40 So. 229.

The appellee is without evidence in this case to support the allegations of the indictment that appellant acted wilfully in presenting the account to the board of supervisors of Hinds county, Mississippi, for payment, and that he knew that the representation was false, when he made it. Not a single witness has taken the stand and said that appellant was trying to defraud Hinds county of one penny. Not a witness has testified that appellant committed a wilful act. Not a witness has testified that appellant knew the account was false when he presented it for payment. All of this was assumed from the language of the indictment. The instructions were even given to the state on the assumption of the state that appellant acted wilfully and knew the representation was false. On the other hand, each and every person from whom it was alleged in the indictment that appellant purchased gravel from as shown by the account presented, most positively swore that if the allowance had been made that each of them would have received every penny of the money to be paid by Hinds county for gravel purchased for the time shown by said account so presented by appellant to the board of supervisors of Hinds county for payment. This evidence is corroborated in part from the very facts that each and every person from whom gravel was claimed to have been purchased was named in the indictment, and this court will take judicial knowledge of the fact that if said allowances had been made that a warrant would have been issued to each of said named persons for the amount due. This fact along shows that appellant was not doing a wilful act in presenting said account, or that he knew that the account was false when he made it. Intent is necessary to the crime of embezzlement, and without a criminal intent there is no crime.

9 R. C. L. 1227.

Proof of the criminal intent of appellant is essential to establish the crime, and this proof must be made by competent evidence beyond every reasonable doubt.

Section 896, Code of 1930; 9 R. C. L. 1277; Carter v. Eastman Gardner & Co., 95 Miss. 651, 48 So. 615; Walker v. State, 146 Miss. 510, 112 So. 673; Harper v. State, 71 Miss. 202, 13 So. 882.

Webb M. Mize, Assistant Attorney-General, for the state.

The court did not err in overruling the demurrer to the indictment.

The various people named in the indictment and the amounts clawed to be due each do not show twenty crimes, but only one crime. The attempt to defraud here was merely a single act or transaction in violation of law, although that one single act or transaction involved violation of law at the expense of more than one person.

31 C. J., sections 327 and 328, pages 768, 769 and 770.

In the case at bar if twenty offenses were in fact charged in the indictment, they were charged as having been committed by the same act. There is only one criminal act involved in the indictment, that one criminal act being an attempt to defraud Hinds county, Mississippi, by trying to have a claim paid, the claim being based on sales from different individuals to Hinds county. A conviction on this indictment would bar convictions on other indictments naming only one of the parties who sold gravel, and an indictment naming only one of the parties who sold gravel would not be a good indictment for the reason that the names of all parties should be included to make up the one transaction. The demurrer to the indictment was correctly overruled.

Jimerson v. State, 93 Miss. 685, 46 So. 948; State v. Clark, 97 Miss. 806, 52 So. 691.

The motion to elect was properly overruled.

The second claim introduced in evidence was most material to the prosecution. It showed the intention of the...