McMillin v. Emery

• Decision Date: 22 March 1922
• Docket Number: 3788
• Citation: 205 P. 898,59 Utah 553
• Court: Utah Supreme Court
• Parties: McMILLIN v. EMERY, Sheriff

205 P. 898

59 Utah 553

McMILLIN v. EMERY, Sheriff

No. 3788

Supreme Court of Utah

March 22, 1922

Original application of Hugh A. McMillin for writ of habeas corpus against C. Frank Emery, Sheriff of Salt Lake County.

WRIT DENIED.

D. A Skeen and Wilson McCarthy, both of Salt Lake City, for plaintiff.

E. A Rogers, Dist. Atty., of Salt Lake City, for defendant.

CORFMAN C. J. WEBER, GIDEON, THURMAN, and FRICK, JJ., concur.

OPINION

CORFMAN, C. J.

Plaintiff has made an original application in this court for a writ of habeas corpus. He alleges in his petition that he is illegally imprisoned and restrained of his liberty by the defendant, C. Frank Emery, sheriff of Salt Lake county, by reason of an information heretofore filed in the district court for Salt Lake county which fails to state facts sufficient to constitute a public offense under the laws of the state of Utah.

Defendant has demurred to the petition for want of facts, at the same time answering, by denial, the allegations of the petition. It appears from the petition that the plaintiff, having theretofore been committed by a committing magistrate on the charge, is accused by information filed against him by the district attorney for Salt Lake county, on July 28, 1921, of having violated section 8235, Comp. Laws Utah 1917, in form and in the manner following to wit:

"That the said Hugh A. McMillin, at Salt Lake county, state of Utah, on the 23d day of November, 1920, being then and there a public officer, to wit, the duly appointed, qualified, and acting deputy treasurer of Salt Lake county, a corporation organized and existing under the laws of the state of Utah, and, by virtue of his being such deputy treasurer, being then and there charged with the receipt, safe-keeping, and the transfer of certain public money, to wit, the funds of said Salt Lake county, a corporation as aforesaid, did then and there willfully, unlawfully, and feloniously, and without authority of law, a certain portion of said fund, to wit the sum of four hundred fifty-four and 70/100ths dollars ($ 454.70), lawful money of the United States of America, appropriate to his own use."

Said section 8235, which plaintiff stands accused of having violated, and for which information is filed against him, in part provides:

"Every officer of this state, or of any county * * * of this state, and every other person charged with the receipt, safe-keeping, transfer, or disbursement of public money, who * * * appropriates the same or any portion thereof to his own use, * * * is guilty of a felony."

It is vigorously contended by the plaintiff that he, as a deputy treasurer, was not an officer or "other person charged with the receipt, safe-keeping or transfer" of public money within the meaning of said section 8235; that the duty and responsibility of handling public money in the office of the county treasurer is confined exclusively to the county treasurer, and no such duty or responsibility is imposed by statute or otherwise upon the deputy. On the other hand, the district attorney contends that within the meaning of our statutes a deputy treasurer is a county officer who handles public money, and therefore is amenable to the provisions of section 8235 in cases of misappropriation of public funds.

Section 1451 of chapter 5, Comp. Laws Utah 1917, under the title "County Officers," provides:

"The officers of a county are: Three county commissioners, a county treasurer, a sheriff, a county clerk, a county auditor, a county recorder, a county attorney, a county surveyor, an assessor, a county superintendent of district schools, and such other officers as may be provided by law."

Section 1461 of the same chapter provides:

"Every county * * * officer, may, by and with the consent of the board of county commissioners, appoint as many deputies and assistants as may be necessary for the prompt and faithful discharge of the duties of his office. The appointment of a deputy must be made in writing, and filed in the office of the county clerk, and, until such appointment is so made and filed and until such deputy shall have taken the oath of office, no one shall be or act as such deputy. * * *"

Section 1462 of said chapter provides:

"Whenever the official name of any principal officer is used in any law conferring power or imposing duties or liabilities, it includes deputies."

Subdivision 17 of section 5848, Comp. Laws Utah 1917, with regard to the construction of our statutes in general, provides:

"The word 'sheriff,' 'county attorney,' * * * or other words used to denote an executive or ministerial officer may include any deputy or other person performing the duties of such officer, either generally or in special cases. * * *"

The plaintiff, in support of his contention that he may not be legally charged as a deputy treasurer with having violated section 8235, has cited the following cases: United States v. Wiltberger, 18 U.S. 76, 5 Wheat. 76, 5 L.Ed. 37; State v. Meyers, 56 Ohio St. 340, 47 N.E. 138; United States v. Hutchinson, 4 Clark 211, 7 Pa. Law J. 365, Fed. Cas. No. 15,432; United States v. Smith, 124 U.S. 525, 8 S.Ct. 595, 31 L.Ed. 534; State v. Denton, 74 Md. 517, 22 A. 305; Moore v. State, 53 Neb. 831, 74 N.W. 319; Hartnett v. State of Texas, 56 Tex. Crim. 281, 119 S.W. 855, 23 L.R.A. (N.S.) 761, 133 Am. St. Rep. 971. These cases all hold that criminal statutes should not be so interpreted as to extend their terms by mere construction to apply to persons or things not clearly within their descriptive terms.

State v. Meyers, supra, was a case similar to the one we now have under consideration. In that case one John W. Meyers was charged, as a deputy county treasurer, with the...