Montgomery v. State

• Decision Date: 29 June 1914
• Docket Number: 17165
• Citation: 107 Miss. 518,65 So. 572
• Court: Mississippi Supreme Court
• Parties: MONTGOMERY v. STATE

65 So. 572

107 Miss. 518

MONTGOMERY v. STATE

No. 17165

Supreme Court of Mississippi

June 29, 1914

APPEAL from the circuit court of Hinds county. HON. W. A. HENRY Judge.

W. A Montgomery was convicted of misconduct in the discharge of his duty as a penitentiary trustee, and appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed.

R. N Miller, E. F. Noel, and W. J. Croon, for appellant.

Geo. H. Ethridge and Powell & Thompson, for appellee.

OPINION

COOK, J.

Appellant is a member of the board of trustees of the penitentiary, and as such was indicted and convicted of misconduct in the discharge of his official duties. The trial court fined appellant one hundred dollars and removed him from office. From this judgment appellant prosecutes this appeal.

Omitting the formal part, the indictment is in these words, viz.:

"Whereupon it became and was their duty, as such trustees of the board of trustees of the state penitentiary during the years 1911, 1912, and 1913, to sell all crops and to receive all moneys from the sale of manufactured goods, crops, and other properties belonging to the penitentiary of the state of Mississippi and to immediately pay the same into the state treasury, and especially to sell certain cotton seed raised on the Sunflower State Farm and to collect and receive from the Natchez Cotton Oil Company of Natchez, Mississippi, to whom said cotton seed had been sold, the sum of five thousand four hundred and ninety-six dollars and thirty-nine cents from the sale of cotton seed in cars Nos. S. P. 81546, I. C. 140776, Southern 107826, I. C. 13755, Southern 138130, New York Central 10611, C. of Ga. 4436, and from the Jackson Oil & Refining Company of Jaskson, Mississippi, the sum of three thousand one hundred and eighty-four dollars and forty-four cents from the sale of cotton seed in cars Nos. G. R. I. 3529, I. & G. N. 5354, M. L. 8284, and A. C. L. 30981; nevertheless the said C. C. Smith, Leroy Taylor, and W. A. Montgomery, at the time and place aforesaid, well knowing their duty in this behalf, but in nowise regarding it, did wantonly, willfully, knowingly, and unlawfully fail, neglect, and refuse during the two years prior to the date of this indictment to sell the cotton seed in the said cars Nos. S. P. 81546, I. C. 140776, Southern 107826, I. C. 13755, Southern 138130, N.Y. C. 10611, C. of Ga. 4436, G. R. & I. 3529, J. & G. N. 5354, M. L. 8284, and A. C. L. 30981, and receive the sum of eight thousand six hundred and eighty dollars and eighty-three cents from the sale of the same, and immediately pay the same into the state treasury of the state of Mississippi, as aforesaid, as they were in duty bound to do, and thence continually, until the finding of this indictment, have so as aforesaid failed, neglected, and refused to receive the proceeds of said cotton seed and immediately pay the same into the state treasury of the state of Mississippi."

To this indictment appellant demurred, assigning the following grounds:

"(1) The indictment charges no offense known to the law of the state of Mississippi, and no offense at common law.

"(2) The indictment charges or attempts to charge several offenses distinct and independent in the same count in the same indictment and is duplicitous and void.

"(3) The indictment does not inform the accused of the nature and cause of the accusation against him.

"(3 1/2) Because of the fact that the date and authority by which the cotton seed was sold to the oil company is not set out; it does not appear from the indictment the cotton seed belonged to the state.

"(4) The indictment charges in one sentence that defendant refused to sell the cotton seed, and then charges him with a failure to receive the money for it, and then charges him with failing to pay the money into the treasury which is contradictory in terms and is vague, uncertain, and indefinite, and the defendant ought not to be held to answer the same.

"(5) Because the legal duty attempted to be charged is not set out; it does not appear from the indictment that the claim for the cotton seed was not barred by limitation and could be collected.

"(6) Because the duty to sell and receive the money is a discretionary duty, not indictable unless corruptly done.

"(7) Because the indictment does not charge corrupt failure of duty."

This demurrer was overruled by the court.

The first averment of the indictment sets out the duties of the board of trustees of the penitentiary with reference to the sale of crops, receipt of proceeds of such sales, and the payment of same into the state treasury. The charging clause of the indictment says that it was the duty of the board of trustees of the penitentiary to sell all crops and to receive all money from the sale of crops and to immediately pay the same into the state treasury; then follows the specific charge that it was the duty of the board of trustees "to sell certain cotton seed raised on the Sunflower State Farm and to collect and receive from the Natchez Cotton Oil Company and from the Jackson Oil & Refining Company of Jackson, Mississippi, to whom said cotton seed had been sold," the sums of money mentioned in the indictment. The indictment then proceeds to charge that the trustees, "well knowing their duty in this behalf, but in nowise regarding it, did wantonly, willfully, knowingly, and unlawfully fail, neglect, and refuse, during the two years prior to the date of this indictment, to sell the cotton seed in the said cars." Again, following a description of the cars, the indictment charges that the board of trustees failed to receive the money for the sale of the cotton seed not sold. It will be observed from this that the indictment charges that certain described property had been sold, followed by a charge that the board of trustees had wantonly failed and refused to sell the same. Immediately succeeding the charge that the property had not been sold, the indictment charges the board of trustees with neglecting and refusing to receive the purchase money for the cotton seed not sold.

Section 26 of the state Constitution accords to every person charged with crime the right "to demand the nature and cause of the accusation."

It is decidedly uncertain whether the averments of the indictment charge that the cotton seed mentioned was actually sold by the trustees, and that the trustees failed and refused to collect the purchase price and pay the same into the state treasury, or that the board of trustees refused to sell the cotton seed at all, and, neglecting their duty in this respect, they had thereby neglected to collect the proceeds of the sale and pay same into the treasury.

If we take the first charge, it would appear that the cotton seed was sold and the trustee neglected and refused to collect and cover the purchase money into the treasury.

If we take the second charge, it would appear that the cotton seed had never been sold, and the state meant to charge its officers with wantonly failing to perform their duty to sell. Ordinarily the sale of a thing embraces several elements--an agreement on the price, the delivery of the article sold,...