State v. Clarkson

• Decision Date: 28 February 1875
• Citation: 59 Mo. 149
• Parties: STATE OF MISSOURI, Appellant, v. HENRY C. CLARKSON, Respondent.
• Court: Missouri Supreme Court

59 Mo. 149

STATE OF MISSOURI, Appellant,

v.HENRY C. CLARKSON, Respondent.

Supreme Court of Missouri.

February Term, 1875.

Appeal from Linn Circuit Court.

C. Boardman, with John A. Hockaday, Att'y Gen'l, for Appellant.

I. The court erred in quashing the first count in the indictment, the offense being charged in the language of the statute (Wagn. Stat., 459, 460, § 41), and a statutory offense, it is not necessary to state the manner or means of the alleged conversion. (Whart. Am. Crim. Law, 3d Ed., ch. 5, pp. 185-6; State vs. Mitchell, 6 Mo., 147; Spratt vs. State, 8 Mo., 247; State vs. Fulton, 19 Mo., 680; State vs. Cox, 29 Mo., 475.)

II. If the funds were for the purpose of paying the interest on the railroad bonds of Jefferson Township, they were properly designated in the 2nd count as the property of said township. (State vs. Cunningham, 51 Mo., 479.) As to the right of the township to subscribe stock to railroads (Wagn. Stat., pp. 313-15). Notice of the prosecution of this appeal has been given him.

Geo. W. Easley, with Alex. W. Mullins, for Respondent.

I. This appeal should be dismissed because the defendant was not either committed or recognized by the court below. (Wagn. Stat., 1114, § 15.) This court cannot acquire jurisdiction over the person of the defendant, nor can he have notice of the appeal otherwise than by such commitment or recognizance.

There is no machinery provided for the re-arrest; while the State does make provision for re-arrest in case the defendant forfeits his recognizance. (Wagn. Stat., 1115, § 23.) The law did not intend that in case of appeal by the State, and reversal, it should take the risk of his escape.

II. The indictment must charge the manner and means of conversion.

III. The indictment should be quashed because it charges the money to be the property of a municipal township. Under the statute the funds collected for the payment of interest, would be the property either of the county of Linn or of the bond holder, and could not belong to the township because it had no separate existence.

WAGNER, Judge, delivered the opinion of the court.

This was an indictment under the statute (Wagn. Stat., 459, § 41, Ed. 1872) for embezzlement, against the defendant who was Treasurer of Linn county.

The indictment contained two counts. The first count set out the election and qualification of the defendant, as Treasurer, and alleged that, as such Treasurer, he was charged with the safe keeping, transfer and disbursement of the public moneys of the county; and while being such, he unlawfully, corruptly, wilfully, knowingly and feloniously did convert to his own use, a portion of the public moneys received by him as Treasurer for safe keeping, transfer and disbursement.

The second count charged that the defendant as Treasurer had the safe keeping, disbursement and transfer of the ordinary funds for the payment of the interest on the railroad bonds of Jefferson township, in the said county; and that as such Treasurer it was made his duty to safely keep and disburse the public money of the county including the fund for the payment of interest on the railroad bonds, and while being such Treasurer, he did unlawfully, wilfully, knowingly, corruptly and feloniously convert to his own use, a portion of the fund for the payment of said interest, the same being the property of said Jefferson township.

A motion was made to quash both counts of the indictment. In reference to the first count, the reasons assigned were: First, that the offense attempted to be charged was not in the language of the statute; and, Secondly, that the count did not set out the manner or means of the alleged conversion. The same grounds were alleged against the second count, and an additional reason was assigned against its validity, namely, that the property alleged to have been converted, was charged as being the property of Jefferson township, a body that had no authority, under the law, to own or hold property.

The motion to quash was sustained and the State appealed.

It seems that when the motion to quash was sustained, and the State took its appeal, the court did not recognize the defendant to appear upon the final determination of the cause in this court, nor did it commit him; and a motion is now made to dismiss the appeal for that reason.

The statute, after giving the State the right to appeal in such cases, provides that if an appeal be granted, the court below shall order the defendant to be committed or recognized, and the recognizance shall be to the same effect as the recognizance required where the defendant himself is appellant; and the party, if committed, shall be held in custody until the judgment of the Supreme Court shall have been passed on the case, to...