State v. Cleveland

• Decision Date: 31 October 1883
• Parties: THE STATE, Appellant, v. CLEVELAND.
• Court: Missouri Supreme Court

80 Mo. 108

THE STATE, Appellant,

v.CLEVELAND.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Harrison Circuit Court.--HON. S. A. RICHARDSON, Judge.

AFFIRMED.

D. H. McIntyre, Attorney General, for the State.

Shanklin, Low & McDougal with J. W. Alexander and W. H. Skinner for respondent.

HENRY, J.

Defendant was indicted at the March term, 1880, of the circuit court of Harrison county. The indictment contains two counts, but, owing to its length, we only incorporate that portion which presents the question we deem it necessary to notice. Omitting the formal parts the first count charges: “That Samuel R. Cleveland, on the 5th day of March, 1877, being then and there an officer duly elected and qualified under the laws of the State of Missouri, to-wit, being the township trustee of Clay township, it being also known as township sixty-six and sixtyseven, in Harrison county and State of Missouri, * * did unlawfully, feloniously, etc., embezzle and convert to his own use,” etc. The other count contains the same averment. A demurrer to the indictment was interposed by defendant, which was sustained and judgment rendered accordingly, from which the State has prosecuted this appeal.

1. EMBEZZLEMENT BY TO WNSHIP TRUSTEE.

Section 41, Wagner's Statutes, 459, on which the indictment was based, provides that: “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 towns and cities, as of the State and counties thereof, shall convert to his own use * * .” It is contended by respondent's counsel that this section does not embrace township trustees; but on this point it is sufficient to say that in the case of State v. Hays, 78 Mo. 600, the contrary was expressly decided.

2. _____: township organization: judicial notice: indictment.

Another, and we think a fatal objection to the indictment is, that it does not allege that township organization had been adopted in Harrison county. In the State v. Bench, 68 Mo. 79, it was held that courts cannot take judicial notice of the fact that a county has adopted township organization. If Harrison county, in pursuance of the Township Organization Act, had adopted township organization, then, under the law, there was such an office as township trustee. Otherwise, there was no such office within that county. It is essential that an indictment against an officer, under that section, should distinctly state such...