Moore v. State
| Decision Date | 17 February 1898 |
| Docket Number | 9697 |
| Citation | 74 N.W. 319,53 Neb. 831 |
| Parties | EUGENE MOORE v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Lancaster county. Tried below before CORNISH, J. Reversed.
REVERSED AND case DISMISSED.
W. E Reed, Barnes & Tyler, and Brome & Burnett, for plaintiff in error:
On the part of plaintiff in error it is respectfully submitted: (1) That under the laws of the state he cannot be adjudged guilty of the crime of embezzlement unless the money claimed to have been embezzled by him was by him lawfully and properly received by virtue of his office; (2) that under the law of the state as it existed when this embezzlement is alleged to have occurred, and as it now exists, the auditor of public accounts was not authorized to receive, and could not lawfully collect, any fees on account of and for issuing certificates of authority or for filing annual statements of insurance companies; (3) that to comply with the law it was necessary that every insurance company desiring to file an annual statement or procure a certificate of authority to be issued to its agent or agents should pay, or cause to be paid, the fees therefor in advance into the state treasury and that having so done, no other fees could be required of any such insurance company; and that the allegation contained in the information respecting the insurance companies therein referred to, to-wit, "That each of said insurance companies having then and there fully complied with sections 20, 23, 24, and 25 of chapter 43 of the Compiled Statutes of the state of Nebraska, and all provisions of the laws of the state," is an affirmative allegation that no money or fees was at that time due from these insurance companies to the state; (4) that the state cannot invoke the doctrine of estoppel. (Ottenstein v. Alpaugh, 9 Neb. 237; State v. Holcomb, 46 Neb. 629; Lowe v. City of Guthrie, 44 P. 198 [Okla.]; Orton v. City of Lincoln, 41 N.E. 159 [Ill.]; People v. Pennock, 60 N.Y. 421; San Luis Obispo County v. Farnum, 41 P 445 [Cal.]; Hartford Fire Ins. Co. v. State, 9 Kan 210; McAleer v. State, 46 Neb. 117; State v. Newton, 26 O. St. 200; State v. Meyers, 47 N.E. 138 [O.]; Warswick v. State, 35 S.W. 386; State v. Bolin, 19 S.W. 650 [Mo.]; State v. Johnson, 49 Ia. 141; United States v. Bixby, 6 F. 375; 4 Lawson, Criminal Defenses 889; State v. Moores, 52 Neb. 770; State v. Lovell, 23 Ia. 304.)
C. J. Smyth, Attorney General, and Ed P. Smith, Deputy Attorney General, for the state:
(1.) Section 32, chapter 43, Compiled Statutes, requiring fees to be paid to the auditor, is not inconsistent with section 24, article 5, of the constitution; hence fees paid to him become in his hands the property of the state. Therefore, he was an officer charged with the receipt, safe-keeping, and transfer of public moneys. (2.) If the statute requiring payment of fees to the auditor is unconstitutional, the fees received by him from insurance companies belonged to the state, and, under section 24, article 5, of the constitution, it was his duty as an officer to pay such fees into the state treasury; and not having done so, but having converted the fees to his own use, he is guilty of embezzlement of public moneys. (3.) If the statute requiring payment of fees to the auditor is unconstitutional, the moneys paid to him by the insurance companies, with the intention of transferring the title to the state, and accepted by him with the intention of receiving the title for the state, became the property of the state, and, under section 21, chapter 10, Compiled Statutes, relating to liabilities of officers, he was responsible for such moneys as property of the state; and in failing to pay the fees into the treasury and in converting the same to his own use he was guilty of the crime charged. (4.) He is estopped to assert that he did not receive the moneys by virtue of his office.
OPINION
The opinion contains a statement of the case.
The information in this case, omitting formal parts, allegations of time, and venue, and other averments not material to the questions presented for review, was as follows: "That Eugene Moore, * * * then and there being an officer, to-wit auditor of public accounts of the state of Nebraska, and as such officer being charged with the collection, receipt, safe-keeping, transfer, and disbursement of the public money and a certain part thereof belonging to the state of Nebraska, and the property of the state of Nebraska, then and there unlawfully and feloniously did fraudulently convert to his own use, and embezzle of said public money the sum of twenty-three thousand, two hundred eight dollars and five cents in money, * * * the property of the state of Nebraska, which said money had then and there come into the custody and possession of said Eugene Moore by virtue of his office as auditor of public accounts as fees from insurance companies then and there doing business in the state of Nebraska, for services to be performed by the said Eugene Moore as said auditor of public accounts in filing by the said Eugene Moore as said auditor the annual statements of said insurance companies and in issuing certificates of authority by the said Eugene Moore as said auditor to the agents of said insurance companies," etc. The remaining averments are chiefly in the way of particularizing the services for which the money alleged to have been converted was received. To this information the defendant pleaded guilty, and then moved in arrest of judgment on the ground that the information charged no crime. The motion was overruled and the defendant sentenced to imprisonment for eight years and to pay a fine of twice the amount alleged to have been embezzled.
A suggestion made in the argument, and reflected in several places in the state's brief, is that the plea admitted the moral guilt of the defendant, and, to quote the last sentence of the brief, "having pleaded guilty to all the charges of the information, this court may well hesitate before reversing his plea, and say he is not guilty after he has said he is guilty." Surely the attorney general cannot mean to contend that because the defendant has by his plea admitted the facts charged and therefore a moral delinquency, he should be punished even if the law does not denounce those facts as a criminal offense. The question before us is not one of moral delinquency, but simply whether the facts charged in the information constitute a crime under the laws of this state. Defendant stands in no worse position in this respect than he would on a demurrer to the information, which would, for the purposes of the proceeding, involve the same admission.
While there are several different sections of the Criminal Code relating to embezzlement by different classes of persons, it is conceded that the information in this case was drawn with a view to section 124, and that it does not charge an offense against any other section. Section 124, so far as it is material, is as follows: "If any officer or other person charged with the collection, receipt, safe-keeping, transfer, or disbursement of the public money, or any part thereof, belonging to the state, or to any county or precinct, organized city or village, or school district in this state, shall convert to his own use, or to the use of any other person or persons, body-corporate, association, or party whatever, in any way whatever, * * * any portion of the public money, or any other funds, property, bonds, securities, assets, or effects of any kind, received, controlled, or held by him for safe-keeping, transfer, or disbursement, or in any other way or manner, or for any other purpose, * * * every such act shall be deemed and held in law to be an embezzlement," etc. It will be observed that this section refers only to the embezzlement of public money or property, and that it applies only to a particular class of persons--those charged with the collection, receipt, safe-keeping, transfer, or disbursement of the public money or a part thereof. It goes almost without saying that no person is subject to the penalties of the statute unless he falls within the description of the class of persons to whom the statute is applicable. The description of the person against whom the penalty is denounced is to that extent descriptive of the offense. The allegation that the defendant was as auditor charged with the collection, receipt, safe-keeping, transfer, and disbursement of the public money is not an allegation of fact, admitted by the plea of guilty, but it is an allegation of law, and open to examination as such. We therefore address ourselves to the examination of that question. Unless the auditor, as such officer, was charged in one of the manners specified, the information fails to state an offense by failing to show that the defendant was within the class to which the...
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