Scruggs v. State

• Decision Date: 25 June 1896
• Citation: 111 Ala. 60,20 So. 642
• Parties: SCRUGGS v. STATE.
• Court: Alabama Supreme Court

20 So. 642

111 Ala. 60

SCRUGGS v. STATE.

Supreme Court of Alabama

June 25, 1896

Appeal from circuit court, Morgan county; H. C. Speake, Judge.

John D Scruggs was convicted of dealing in a claim against the county while a public officer, and appeals. Reversed.

The appellant was tried and convicted under the following indictment: "The grand jury of said county charge that before the finding of this indictment, John D. Scruggs, being at the time a public officer of said county, directly or indirectly, by himself or through another, purchased, dealt or trafficked in a claim or claims payable out of the county treasury of said county, or a claim or claims payable out of the fine and forfeiture fund of said county, of Morgan, and said claim or claims were not taken in good faith in payment of a debt due him, against the peace and dignity of the state of Alabama." On the trial of the cause, as is shown by the bill of exceptions, the defendant introduced one Sterling Cross as a witness, who testified that, prior to the finding of the indictment, he sold to the defendant a grand jury ticket, and that the sale was not in payment of a debt due the defendant, but was for cash, and that at the time of this sale the defendant was a clerk in the office of the judge of probate of Morgan county. The state also introduced one John B. Sparkman, who testified that he had also sold to the defendant a grand jury ticket, which was signed by the foreman thereof, and payable out of the fine and forfeiture fund of the county, and that the sale was not made in payment of any debt due the defendant, but was made for cash. The defendant objected to the testimony of the witness Sparkman and moved to exclude it from the jury, on the grounds-First, that it was an attempt to set up an offense committed at different times from that laid by the state, as shown by the witness Cross; and, second, that it was evidence of acts committed at a different time from those testified to by the witness Cross. The court overruled the objection and motion, and the defendant duly excepted. Thereupon the defendant moved the court to require the state to elect as to which time or offense it would rely on for a conviction. The court overruled this motion, and the defendant duly excepted. The other evidence is sufficiently stated in the opinion. The court, in its general charge to the jury, instructed them, among other things, as follows: "That if they believed the evidence beyond a reasonahle doubt, they must find that the defendant, at the time he purchased the grand jury tickets from the witnesses Cross and Sparkman, was a public officer of the county, and was amenable to the provisions of the Code of 1886 (section 3931)." To this portion of the court's oral charge the defendant duly excepted, and also separately excepted to the court's giving, at the request of the state, the following written charges: "(1) If you believe the evidence in this case beyond a reasonable doubt, you must find for the state, and in that event your verdict would be 'We, the jury, find the defendant guilty.' (2) If you believe the evidence in this case beyond a reasonable doubt, you must find the defendant guilty." The defendant requested, in various forms, the general affirmative charge in his favor, and separately excepted to the court's refusal to give each of such charges, and also separately excepted to the court's refusal to give each of the following charges: "(8) I charge you that, from the evidence in this case, the defendant was not a public officer, as understood by section 3931 of the Code of 1886. (9) I charge you that the defendant was the agent or employé of Jas. E. Peck, his employer, and not of Morgan county, or of Alabama."

W. C. Fitts, Atty. Gen., for the State.

COLEMAN J.

The defendant was indicted for a violation of section 3931 of the Criminal Code, which reads as follows: "Any public officer, who, directly or indirectly, by himself or through another, purchases, deals or traffics, in any manner whatever, in any claim payable out of the county treasury, or out of the fine and forfeiture fund of the county, must, on conviction, be fined for each offense not less than ten, nor more than fifty dollars; but nothing contained in this section prevents any officer from receiving in good faith any county claim in payment of a debt due him. This section must be given in charge to the grand jury; and the solicitor is required to summon the county treasurer before the grand jury to give evidence against any one for a violation of this section."

The first question for consideration is, whether the defendant was a public officer, within the meaning of the statute. The evidence shows that he was a clerk of the probate judge appointed under and by virtue of subdivision 6, § 795, Code, as amended by St. Feb. 21, 1893 (Acts 1892-93, p. 1190), and that he had given bond, and qualified by taking the oath prescribed by the statute. A mere reading of the statute is sufficient, without argument, to show that the defendant is a public officer. He has not only ministerial duties to perform, which are prescribed by statute, but judicial authority and...