State v. Brown

• Decision Date: 11 December 1935
• Docket Number: 14190.
• Citation: 182 S.E. 838,178 S.C. 294
• Parties: STATE v. BROWN.
• Court: South Carolina Supreme Court

182 S.E. 838

178 S.C. 294

STATE v. BROWN.

No. 14190.

Supreme Court of South Carolina

December 11, 1935

Appeal from Common Pleas Circuit Court of Cherokee County; M. M Mann, Judge.

H. M Brown was indicted for crime of embezzlement, and, from an order overruling motion to quash the indictment, he appeals.

Affirmed.

Wolfe & Fort, of Gaffney, for appellant.

Samuel R. Watt, of Spartanburg, for the State.

BAKER Justice.

At the March, 1935, term of the court of general sessions for Cherokee county, the grand jury returned a true bill against H. M. Brown, the treasurer of said county, charging him with the statutory crime of embezzlement; said indictment in substance reading as follows: "That the said H. M Brown, did wilfully and unlawfully embezzle certain public funds, that is to say, the said H. M. Brown being at the times alleged, treasurer of the County of Cherokee, State of South Carolina, did then and there, take and appropriate said public funds while being intrusted with their safekeeping, transfer and disbursement; that he did thereby wilfully, unlawfully and feloniously embezzle the same with fraudulent intent and with intent to cheat the county of Cherokee, on the 14th day of December, 1934 and on divers days since the said 14th day of December, 1934, in the aggregate of approximately $1,400.00, against the form of the statute in such case made and provided, and against the peace and dignity of the State."

Appellant was indicted under section 1510, Criminal Code of South Carolina, 1932, as amended in 1934 by Act of the General Assembly (38 St. at Large, p. 1197, § 1); the said act, as amended, reading as follows:

"'Section 1510: All officers and other persons charged with the safe keeping, transfer and disbursements of any public funds, who shall embezzle the same, shall be deemed guilty of felony, and, upon conviction thereof, shall be punished by fine and imprisonment, in the discretion of the court; said fine and imprisonment to be proportioned to the amount of the embezzlement; and the party convicted of such felony shall be disqualified from ever holding any office of honor or emolument in this State: Provided, however, that the General Assembly, by a two-thirds vote, may remove the disability upon payment in full of the principal and interest of the sum embezzled. In trials under this Section, upon production of evidence tending to prove that any such officer or other person has received public funds and failed to account therefor as required by law, there shall arise a presumption that the funds received and unaccounted for have been fraudulently appropriated by such officer or person, and the burden at such stage of the case shall rest upon such officer or person to show otherwise.'

§ 2. All Acts or parts of Acts inconsistent herewith are hereby repealed."

At the subsequent July term of said court for said county, after due notice, a motion to quash, or a demurrer to the indictment, was interposed on behalf of the appellant; said motion to quash or demurrer raising the objection that it appeared upon the face of said indictment: "(1) That the Court has no jurisdiction of the person of the defendant, or of the subject-matter of the charge against the defendant; and (2) upon the further ground that it appears upon the face of said Indictment, that it does not state facts sufficient to constitute the offence of Embezzlement under the law. * * *"

It is then set out in detail that the effect of said amendment, as passed in 1934, to said statute, was to render said statute violative of the South Carolina Constitution and of the Constitution of the United States. That it was in violation of the South Carolina Constitution, in that it takes from appellant his liberty, or attempts to take from him his liberty, without due process, in that it denies to him the right of trial by jury of one of the essential elements of the alleged crime of embezzlement, to wit, fraud and intent to cheat, contrary to provision of article 1, § 5, contrary to provision of article 1, §§ 18 and 25, respectively, and to provision under section 18 that the defendant be confronted with witnesses against him. That said statute as amended violates the due process clause of said Constitution, and specifically violates section 17, article 1, thereof, in that it assumes or presumes a probative and culpable fact essential to establishing the crime of embezzlement, and thereby shifting the burden upon the appellant to rebut said assumption or presumption, which would force appellant upon the stand as a witness, subject to cross-examination, and, as such, force him to be a witness against himself.

That the statute as amended is discriminatory in that it violates the equal protection of the laws provision of section 5, article 1, of the State Constitution. That the act, as amended, by assuming a probative and culpable fact essential to his conviction, forces defendant to take the stand against himself, violates the "Due Process" clause of the Constitution, and deprives him of his constitutional right of trial by jury, right of equal protection of the laws, right to be confronted by the witnesses against him, and the constitutional right of a fair and impartial trial; and that the statute as amended presumes a fraudulent intent on the part of appellant upon the production of evidence tending to show that he had received public funds and failed to account for them as required by law; fraudulent intent being an essential element of the crime of which no proof is required. The same questions are raised under the Federal Constitution and the amendments thereto.

The demurrer was heard by the presiding judge, Honorable Marvin M. Mann, who thereafter rendered his order, the pertinent portion of which is quoted: "After hearing argument, it is ordered, that the demurrer (or Motion to Quash the indictment) be, and it is hereby, over-ruled. Realizing the gravity of the situation however, I deem it important and advisable that the questions raised be definitely determined by the appellate Courts before further prosecution under said indictment or any amendment, or substitute indictment therefor, and this ruling therefore is without prejudice to the defendant to appeal, if he be so advised."

From this order the appellant appealed to this court, recognizing the rule of the court not to entertain an appeal until final judgment has been rendered. However, the state is willing and even anxious to have the questions as to the validity of the statute determined, and has joined in the request that the appeal be heard. Accordingly, this court has undertaken the construction of the statute, but the members of the bar are advised not to construe or take as a precedent this instant case as abrogating in any particular the rule that an appeal will not be considered until final judgment.

The appellant has excepted to the order of Judge Mann in seven particulars, which exceptions, as stated by appellant, raise the following questions:

"Is the Act of the General Assembly, approved February 5 th, 1934, and replacing Section 1510 of the Criminal Code 1932, constitutional?

Does it safeguard to the defendant H. M. Brown his constitutional rights of "due process,' 'fair and impartial trial,' 'equal protection of the laws,' 'of having the probative facts of the case against him, submitted to a jury,' 'of requiring that the State prove the criminal charge against him, beyond a reasonable doubt?' Is he clothed with the presumption of innocence, or is he afflicted with the presumption of guilt? Is the burden on the prosecutor to prove his case, or is it incumbent upon the defendant to shoulder the burden of proving his innocence of the charge? Does the Statute abridge the privileges and immunities of the accused, under the Federal constitution, and under the constitution of the State of South Carolina? He has a right if he so elects, not to go on the stand as a witness at all. Does the statute under which he is charged here, protect this privilege, or does it abridge this privilege? He has a right to be confronted by the witnesses against him. Does the statute under which he is charged, assure him of this right or does it presume his guilt without the production of witnesses to prove it? Is the statute discriminatory? Does it not materially alter the procedure of the trial in the case of one who stands as he does, charged with the crime of Embezzlement, from that which obtains in cases where the accused is charged with larceny, breach of trust with fraudulent intent, or other like crimes?"

The indictment itself is correct in its allegations, stating all the essential elements of the offense of embezzlement, so, therefore, it is not the indictment that is at issue, but it is the statute upon which the indictment is based.

Embezzlement was unknown in the common law and is an offense purely of statutory origin. It is defined in Black's Law Dictionary, quoted with approval in State v. Alexander, 140 S.C. 325, 138 S.E. 835, 838, as:

"'The fraudulent appropriation to his own use or benefit of property or money intrusted to him by another, by a clerk, agent, trustee, public officer, or other person acting in a fiduciary character.'

Reading our statute, with Mr. Black's definition in mind, it appears, then, that our legislative enactment, succinctly stated, makes it a felony for one charged with the safe-keeping and disbursement of public funds to fraudulently appropriate to his own use or benefit any of the funds intrusted to him." State v. Alexander, supra.

Does the legislative enactment, that there shall arise a presumption that funds received and unaccounted for have been fraudulently appropriated, contravene any section of the Constitution of South...