State v. Archer

• Decision Date: 03 July 1890
• Citation: 20 A. 172,73 Md. 44
• Parties: STATE v. ARCHER.
• Court: Maryland Court of Appeals

20 A. 172

73 Md. 44

STATE v. ARCHER.

Court of Appeals of Maryland

July 3, 1890

Appeal from criminal court of Baltimore.

Argued before ALVEY, C.J., and IRVING, BRYAN, MCSHERRY, FOWLER BRISCOE, and ROBINSON, JJ.

Atty. Gen. Whyte and Charles S. Kerr, for the State.

Bernard Carter and Edgar H. Gans, for respondent.

ROBINSON J.

The defendant in error was indicted under section 80, art. 27 Code, which provides that "any person holding office in this state, whether elected or appointed by the governor, by the corporate authorities of Baltimore, or by any other authority legally authorized to make such appointments, who shall fraudulently embezzle or appropriate to his own use money, funds, or evidences of debt, which he is by law bound to pay over, account for, or deliver to the treasurer of this state, or to any other person by law authorized to receive the same, shall be guilty of a misdemeanor," etc. The indictment charges that the defendant in error, being the duly elected and qualified treasurer of the state, fraudulently embezzled and appropriated to his own use money and evidences of debt belonging to the state, and which he was bound to account for and deliver to Edwin H. Brown, his successor in office. The sole question is whether the offense thus charged comes within the provisions of the Code, or, in other words, whether the Code provides for the punishment of the state treasurer who embezzles the state funds? The question is a narrow one, and turns entirely upon the construction of the statute. A good deal was said about the general rules by which courts are governed in the construction of the statutes, but these are too well settled to admit of much discussion. All agree that the intention of the legislature must govern in the construction of all statutes. This rule lies at the bottom of all statutory construction. The law, it is true, in its tenderness for life and liberty, requires that penal statutes shall be strictly construed, by which is meant that courts will not extend the punishment to cases not plainly within the language used. At the same time, such statutes are to be fairly and reasonably construed, and courts will not, by a narrow and strained construction, exclude from their operation cases plainly within their scope and meaning. As stated by Sedgwick on Statutory Law, p. 287, and quoted with approval by BRAMWELL, B., in Foley v. Fletcher, 28 Law J. Exch. 106: "The more correct version of the doctrine appears to be that the statutes of this class are to be fairly construed and faithfully applied according to the intent of the legislature, without unwarrantable severity on the one hand, or equally unjustifiable lenity on the other; in cases of doubt, the courts inclining to mercy." After all, then, it is the legislative intent that must govern in the construction of penal as in all other statutes. Lyons' Case, Bell Cr. Cas. 45; Nicholson v. Fields, 31 Law J. Exch. 235; The Gauntlet, L. R. 4 P. C. 191; U.S. v. Lacher, 134 U.S. 624, 10 S.Ct. 625. This intention is to be ascertained, primarily, of course, from the language of the statute itself, and, if the language used is plain and unambiguous, the legislature must be understood as meaning what they have expressly declared. Now, what is the language of the statute under consideration? "Any person holding office in this state, * * * who shall fraudulently embezzle or appropriate to his own use money, funds or evidences of debt, which he is by law bound to pay over, account for, or deliver to the treasurer of the state," etc. Provision is thus made for the punishment of all officers who shall embezzle funds of the state which they are bound to pay over or deliver to the treasurer, but this, it is argued, does not include the treasurer, because he cannot be said to be bound to pay over or deliver such funds to himself. If the statute stopped here, there might be some ground for this contention. But it does not stop here, having made provision for the punishment of such officers; that is to say, officers whose duty it is to pay over and account for to the treasurer. It further provides for the punishment of all officers who shall embezzle money, funds, or evidences of debt belonging to the state, which they are bound to pay over, account for, or deliver "to any other person by law authorized to receive the same." Such is the plain and unambiguous language of the latter part of the enacting cause, and it would be difficult to employ language broader and more comprehensive. Thus the body of the act not only provides for the punishment of such officers who shall embezzle state funds, which they are bound to pay or deliver to the treasurer, but also for the punishment of all officers who shall embezzle money or funds of the state which they are bound to pay or deliver to any person lawfully authorized to receive the same. So the question comes to this: Did the defendant in error embezzle or appropriate to his own use money, funds, or evidences of debt belonging to the state, which he was bound to pay or deliver "to any person by law authorized to receive the same?" If he did, then the offense charged in the indictment is one within the very letter of the statute. The embezzlement being admitted by the demurrer, the only question is whether the funds embezzled were funds which he was bound to pay over, account for, or deliver to any person lawfully authorized to receive the same; and as to this there cannot be it seems any question. He is the most important financial officer of the state. The entire revenue of the state, amounting to millions of dollars, is paid to him, and by him to be disbursed in the mode and manner provided by law. Besides this, the sinking fund, the productve and unproductive assets,are intrusted to his care and custody, and the surplus revenue remaining in the treasury he is directed to invest from time to time, in state or other securities, all of which are committed to his keeping. These funds belong to the state and are held by him as treasurer, and when he ceases to be treasurer, whether by removal or otherwise, he is bound to pay over, account for, and deliver such funds to his successor in office, who is the person lawfully authorized to receive the same. Upon his failure to do so, his official bond would be liable in a civil action, and for the embezzle of such funds by him while in office the defendant in error would be criminally responsible.

Now against this plain and obvious construction of the statute, what is the contention on the other side? There must be, it was argued, a point of time when the crime was committed, and it could not be said to have been committed before the defendant was dismissed from office, because there were no funds which he was obliged to pay over or deliver to the treasurer of the state, he being then the treasurer himself. Nor could the crime be said to have been commited after he was discharged from office, because he was not then a person holding office. So, according to this contention, there was no point of time when the defendant could have committed the crime. The bare statement of such argument is an answer to the argument itself. There must have been, it is true, a point of time when the crime was committed, and that point of time was when the defendant embezzled the funds of the state in his possession, as its treasurer, and which he was bound to pay over, account for, or deliver to any person lawfully authorized to receive the same. He was bound, as we have said, to pay over or deliver such funds to his successor in office, and the crime was complete when he embezzled or appropriated the same to his own use. The crime being complete, his subsequent removal in no manner affected his criminal responsibility. He is indicted as Stevenson Archer, and as such he is answerable for a crime committed by him while holding the office of treasurer,...