Sanders v. State
| Decision Date | 19 October 1925 |
| Docket Number | 24831 |
| Citation | 105 So. 523,141 Miss. 289 |
| Court | Mississippi Supreme Court |
| Parties | SANDERS v. STATE. [*] |
(In Banc.).
1. CRIMINAL LAW. Courts take judicial notice of beginning and ending of terms of public officers, but not of names of persons occupying offices at any given time.
The courts will take judicial notice of the- beginning and ending of the terms of public officers, but will not take judicial notice as to the names of persons occupying such offices at any given time.
2 EMBEZZLEMENT. Indictment for embezzlement not required to
charge that conversion of public funds was made with intent to cheat and defraud.
An indictment for embezzlement by a public officer under section 1141, Code of 1906 (section 869, Hemingway's Code) charging such officer with unlawfully, fraudulently, and feloniously converting to his own use public funds coming into his hands by virtue of his office, is not required to charge that such conversion was made with intent to cheat and defraud.
3. INDICTMENT AND INFORMATION. Indictment for embezzlement need not set out extrinsic facts constituting offense.
Section 1141, Code of 1906 (section 869, Hemingway's Code), by sufficient words defines the crime of embezzlement therein denounced, and therefore it is not necessary, in an indictment for such crime, to set out the extrinsic facts constituting the offense.
4 EMBEZZLEMENT. Indictment charging that accused had possession. by virtue of office, of money to amount named therein, held sufficient without setting out particular funds charged to have been embezzled.
An indictment under section 1141, Code of 1906 (section 869 Hemingway's Code), charging that defendant, a public officer, had possession, by virtue of such office, money to an amount named in the indictment, the property of the county, is sufficient without setting out the particular funds charged to have been embezzled.
5. INDICTMENT AND INFORMATION. State is not required to furnish bill of particulars in criminal prosecution; statute held not to require state to furnish bill of particulars in criminal prosecution.
There is no authority of law for requiring the state to furnish a bill of particulars in a criminal prosecution. Section 763 Code of 1906 (section 546, Hemingway's Code), authorizing the court under certain conditions to require a bill of particulars, is confined to civil causes in the circuit courts, and has no application to criminal prosecutions. The indictment itself is the only bill of particulars required by law.
6. EMBEZZLEMENT. In instructing jury for state, failure to charge that conversion of funds involved was done with intent to cheat and defraud held not error.
In a prosecution for embezzlement under section 1141, Code of 1906 (section 869, Hemingway's Code), there was no error, instructing the jury for the state, in failing to charge the jury that the conversion of the funds involved was done with intent to cheat and defraud.
7. CRIMINAL LAW. Continuances in discretion of court, and to secure reversal refusal must have amounted to abuse of discretion. Continuances are so largely within the discretion of the trial court that a request to grant a continuance is rarely a ground for reversal. There must have been an abuse of discretion on the part of the trial court to work a reversal.
8. CRIMINAL LAW. Indictment and information. Variance between indictment and proof, to entitle accused to acquittal, must be harmful; if evidence shows accused has been informed of nature and cause of crime, variance between indictment and proof is harmless.
It is not every variance between an indictment and the proof which entitles a defendant to an acquittal. The variance must be harmful to the defendant. Notwithstanding the variance, if it develops in the evidence that the defendant has been informed of the nature and cause of the crime which he is required to defend, then such variance is harmless.
9. EMBEZZLEMENT. Evidence of embezzlement held to make case for jury.
The evidence examined, and held, that it was a question for the jury whether the defendant was guilty of the crime charged.
APPEAL from circuit court of Sunflower county, HON. S. F. DAVIS, Judge.
W. P. Sanders was convicted of embezzlement, and he appeals. Affirmed.
Affirmed.
Everett & Forman, for appellant.
I. The indictment shows on its face a false charge because it charges Sanders with being the duly elected, qualified and acting county superintendent of education on September 8, 1924, when the court takes judicial notice of the fact that he was not such an officer at that time. Therefore, being indicted as an official, that allegation in the indictment became material and, therefore, must be proved. If the court takes judicial notice of the fact that C. T. Bookout was the county superintendent of education on September 8, 1924, then certainly the indictment against W. P. Sanders was bad. "The court takes judicial notice of the beginning and ending of the terms of public officers." State v. Smith, 87 Miss. 558; Stubbs v. State, 53 Miss. 437; State v. Glennen et al., 93 Miss. 838; McInnis v. State, 97 Miss. 280.
II. The demurrer challenges the sufficiency of the indictment for the reason that it fails to allege that the money charged to have been embezzled with an intent to cheat and defraud the owner thereof or to injure some other person. 1 Bishop's Criminal Procedure, par. 42; 1 Chitty's Pleading, page 234; State v. Murphy, 86 So. 868, 124 Miss. 440. Nowhere in the indictment now before us does it charge him with intending and designing to cheat and defraud, though "Where the evil intention is necessary to constitute the act a crime, the intent must be alleged in the indictment." Marmon v. State, 24 Miss. 54; 9 R. C. L., page 1296, par. 42; State v. Moyer, 58 W.Va. 146.
III. The demurrer challenges the sufficiency of the indictment because it sets out no extrinsic facts which show a commission of a crime by the defendant, there being no sufficient words in the statute to define the offense of embezzlement. This indictment is returned under section 869, Hemingway's Code (section 1141, Code of 1906). Embezzlement is a statutory and not a common-law crime. McInnis v. State, 97 Miss. 280. Therefore, it is seen that to write an indictment simply in the language of the statute above quoted would charge nothing against any person, but in order to write an indictment for embezzlement under this statute, it is necessary for the pleader to employ such language in alleging extrinsic facts which will charge an offense under the statute, which does not undertake, in its language, to define the crime of embezzlement, leaving the necessary allegations charging the material facts constituting the crime to the pleader. In this indictment there is nothing to show where the money charged to have been embezzled came from. There is nothing to show that it belonged to Sunflower county. There is nothing to show that the appellant was by any official position charged with handling any of the funds of Sunflower county, and by the mere averment that he was county superintendent of education does not show that he was charged as such officer with the custody of any funds whatsoever. Therefore, it is necessary for the pleader to go further and to show by extrinsic facts incorporated into his indictment the whys and wherefores of his custody of funds and to show where they came from and to whom they belong. Jesse v. State, 28 Miss 100; Sarah v. State, 28 Miss. 267; Harrington v. State, 54 Miss. 494; Rawls v. State, 70 Miss. 739; Sullivan v. State, 67 Miss. 346; State v. Southern R. R. Co., 112 Miss. 26; Pruitt v. State, 76 So. 761, 116 Miss. 33. See especially State v. Howard, 66 Minn. 309, 61 Am. St. Rep. 403.
IV. The court having overruled this demurrer the appellant then filed a motion to require the state to furnish to it a bill of particulars showing: (a) When the money came into his hands; (b) Where the money came from and how it came into his possession; (c) When, where and how the same was embezzled; and (d) By what authority said money came into his possession. This motion was heard and overruled by the court.
The indictment being bad, in our opinion, it was the duty of the state to furnish to the defendant this bill of particulars. Pruitt v. State, supra.
V. Instruction No. 5 tells the jury to convict the defendant irrespective of how he obtained the money or for what purpose it came into his hands and irrespective of a fraudulent intent to cheat and defraud. See People v. Gordon, 133 Cal. 328; Taylor v. Commonwealth, 25 Ky. Law 374; State v. Regill, 169 Mo. 659; State v. Schild, 159 Mo. 130.
VI. When the state announced itself ready for trial in this case, the defendant asked for a continuance which motion was based on the fact that the indictment did not show him what he had to meet in the way of proof, and the further fact that the district attorney stated only a few minutes before the trial started that he would rely upon the audit for his proof. We then wanted, and were entitled to, time to investigate the audit. The court overruled this request and forced us to trial. Being forced into trial without knowing what items would be claimed to be short until a witness was placed on the witness stand, the defendant had no opportunity whatever of examining the books of the depository with reference to any other accounts. There is no proof in the record to show that Sandlers ever appropriated a dime of this money to his own use. See Bell v. State, 110 Miss. 430, 70 So. 456. If he spent the money for school purposes, then there was no intent to embezzle and he cannot be convicted of embezzlement. If the evidence introduced by ...
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