State v. Bolin

• Decision Date: 31 May 1892
• Citation: 19 S.W. 650,110 Mo. 209
• Parties: The State, Appellant, v. Bolin
• Court: Missouri Supreme Court

19 S.W. 650

110 Mo. 209

The State, Appellant, v. Bolin

Supreme Court of Missouri, Second Division

May 31, 1892

Appeal from Howell Circuit Court. -- Hon. Joseph Cravens, Judge.

Affirmed.

John M Wood, Attorney General, J. B. Tillman, Prosecuting Attorney and M. B. Clarke for appellant.

(1) The indictment is sufficient under the statute. R. S. 1879, sec 1326. (2) It is not necessary under that statute that the money should have come in possession of the defendant by virtue of his office. It is sufficient if he received it under color or pretense thereof. (3) It is sufficient to charge the money as public money. 62 Mo. 393; 59 Mo. 149; 78 Mo. 600.

Seay, Winningham & Orchard for respondent.

OPINION

Macfarlane, J.

The grand jury of Howell county preferred against the defendant an indictment for embezzlement as follows:

"The grand jurors for the state of Missouri, summoned from the body of Howell county, impaneled, sworn and charged to inquire within and for the body of Howell county, upon their oaths present and charge that H. L. Bolin, late of the county aforesaid, on or about the twenty-eighth day of November, 1888, at and in the county of Howell and state of Missouri, being then and there an officer duly appointed and qualified under the laws of the state of Missouri, to-wit, being then and there a justice of the peace of Hutton Valley township, in said county of Howell and state of Missouri, certain public moneys, to-wit, $ 200, of the value of $ 200, of the public moneys of the county school fund of said county of Howell and state aforesaid, did then and there unlawfully and feloniously convert to his own use, which said moneys then and there had come to him, the said H. L. Bolin, by color and pretense of his said office; and so the said H. L. Bolin, in manner aforesaid, the said public moneys aforesaid, feloniously and unlawfully did embezzle and convert to his own use, contrary to the statute in such case made and provided, and against the peace and dignity of the state."

To this indictment defendant interposed a demurrer on the ground that no crime was charged, and the indictment was insufficient. The demurrer was sustained, and the state appealed.

Section 1326, Revised Statutes, 1879, under which the indictment was found, is as follows:

"If any officer, appointed or elected by virtue of the constitution of this state, or any law thereof, including as well all officers, agents and servants of incorporated cities and towns, or municipal townships or school districts, as of the state and counties...