People v. Schoeller, Cr. 4345

• Decision Date: 10 February 1950
• Docket Number: Cr. 4345
• Citation: 214 P.2d 565,96 Cal.App.2d 61
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. SCHOELLER.

Page 565

214 P.2d 565

96 Cal.App.2d 61

PEOPLE v. SCHOELLER.

Cr. 4345.

District Court of Appeal, Second District, Division 2, California.

Feb. 10, 1950.

Rehearing Denied Feb. 21, 1950.

Hearing Denied March 9, 1950.

Ray L. Smith, Wm. C. Schaper, Los Angeles, for appellant.

Fred N. Howser, Attorney General, Frank Richards, Deputy Attorney General, William E. Simpson, District Attorney, Jere J. Sullivan, Richard S. Chapman, Deputy District Attorneys, Los Angeles, for respondent.

WILSON, Justice.

Defendant was charged by indictment with 56 counts of violation of section 424 of the Penal Code. He entered a plea of not guilty to all counts and when the case was called trial moved to dismiss the indictment upon the ground it did not state a public offense. This motion was denied. After trial by the court, a jury trial having been waived, defendant was found guilty on all counts. His motion for new trial was denied, probation was denied and he was sentenced to the state prison. He has appealed from the order denying a new trial and from the judgment and sentence.

The sole question raised by this appeal is whether the indictment states a public offense.

Respondent asserts that not having demurred before plea was entered and no motion to set aside the indictment or motion in arrest of judgment having been made, defendant has waived his objections to the form of the indictment. All objections which appear on the face of an indictment are waived by defendant's failure to demur before plea except want of jurisdiction of the court over the subject of the indictment or failure to state facts constituting a public offense. Such may be taken advantage of at any time in the course of the proceedings, People v. Kinsley, 118 Cal.App. 593, 596, 5 P.2d 938; Penal Code, sec. 1012, and may be raised for the first time on appeal from the judgment.

The pertinent portions of section 424 of the Penal Code are as follows: 'Each officer of this state, or of any county, city, town, or district of this state, and every other person charged with the receipt, safe-keeping, transfer, or disbursement of public moneys, who either:--* * * 3. Knowingly keeps any false account, or makes any false entry or erasure in any account of or relating to the same; * * * Is punishable by imprisonment in the state prison for not less than one nor more than ten years, and is disqualified from holding any office in this state.'

Each count of the indictment alleges that defendant was the duly and regularly appointed, qualified and acting secretary of the Palmdale Irrigation District; that he wilfully, unlawfully, feloniously and knowingly kept a false account and made a false entry in the books of the irrigation district.

It is defendant's contention that the indictment is fatally defective in that it does not contain an allegation that he is an officer of the state or of a district therein, or that he was a person charged with the receipt, safe-keeping and transfer of public moneys. This contention is untenable. The indictment alleges that defendant was the 'duly and regularly appointed qualified and acting Secretary of the Palmdale Irrigation District, a public corporation.' 'Secretary' is defined as 'Secretary of the board' Water Code, sec. 20523, and defendant admits in his brief that he was appointed secretary of the board of directors in 1933. He asserts, however, that the secretary is not an officer of the district but a mere employee; that the assessor, collector and treasurer are the only officers of the district.

While it may be conceded that the aforementioned officers, together with the board of directors, are the only elective officers, Water Code, sec. 20524, there is nothing in the statute limiting the officers of the district to elective officers. On the contrary, the board of directors has the power to 'employ agents, officers, and employees as required' and to 'prescribe their duties and fix their salaries.' Water Code, sec. 21185. The statute further provides that at its organization meeting the board shall appoint a secretary who shall hold office during the pleasure of the board. Water Code, sec. 21376. Since it is the duty of the board to manage and conduct the business and affairs of the district, Water Code, sec. 21385, the secretary to whom certain of its duties are delegated would be not a mere employee but an officer of the district.

Defendant cites a number of cases in support of his contention that the indictment fails to state a public offense. These cases with but one exception were all decided prior to the 1927 and 1929 amendments, Penal Code, secs. 951, 952, 959, 960, liberalizing the rules governing pleadings in criminal...