State v. Flint

Decision Date31 May 1876
Citation62 Mo. 393
PartiesSTATE OF MISSOURI, Appellant, v. THOMAS J. FLINT, Respondent.
CourtMissouri Supreme Court

Appeal from Harrison Circuit Court.

J. A. Hockaday, Att'y Gen'l, for Appellant.

I. The first count of the indictment covers the statutory offense and is therefore sufficient. (Wagn. Stat., 459, § 41.) It is not necessary to state more definitely the money embezzled. (Whart. Crim. L. [7 Ed.] § 1941; 2 Bish. Crim. P., 325.) Nor is it necessary to state how much belonging to the State and county, each, was embezzled. The substance of the offense is the embezzlement of public money. (Brown vs. State, 18 Ohio St., 506.)

II. Where a statute enumerates offenses disjunctively, the indictment must charge them conjunctively, unless the acts are repugnant. (30 Mo., 241; 44 Mo., 343.)

For the same reason the indictment is good where it avers that he converted the money to his own use, used it by way of investment in property and merchandise, that he made away with the same and secreted, etc.

III. It is not necessary to aver how the defendant became agent of the State and county. (Arch. Crim. Prac. and forms, 562.) The same rule should apply to an agent of State or county as to that of corporations or individuals in ordinary cases of embezzlement and conversion.

IV. Nor is it necessary to state with more particularity how defendant became possessed of the money as said agent, nor by whom the money was intrusted. (Whart. Crim. L., § 1941.)

V. The other objections to this count are that the allegations are inconsistent and repugnant, and that the indictment is too general to inform the accused of the crime alleged against him. As to the first point, see 30 Mo., 241; and there is no force in the latter point, as all the elements of the offense are embraced in the indictment.

Shanklin, Low & McDougal, for Respondent.

I. The crime charged is a felony under our statute, and the indictment should be sufficiently definite to put the accused in possession of the charge for which he is held to answer. (State vs. Rockford, 52 Mo., 199; State vs. Bonnell, 46 Mo., 395; State vs. Evers, 49 Mo., 542; State vs. Bittinger, 55 Mo., 601; State vs. Heine, 50 Mo., 362; State vs. Albin, 50 Mo., 419; State vs. Gardner, 2 Mo., 24.)

An indictment for embezzlement, so general as to afford no information to the prisoner of the precise sums embezzled or of the persons from whom they were received, has been held insufficient by the English courts. (Rex vs. Hodgson, 3 C. & P., 422; Rex vs. Bootyman, 5 C. & P., 300; 2 Arch. Cr. Pr., [[[[[7 ed.] 562.) The indictment must go beyond the words of the statute, and state what money or thing was embezzled, and, how, or from whom, it came into the hands or possession or under the control of the officer or agent. (Rex vs. Ferneaux, Russ. & Ry., 335; Rex vs. Flower, 5 B. & C., 736; Com. vs. Simpson, 9 Met., 138; Rex vs. Johnson, 3 M. & S., 539; People vs. Cox, 40 Cal., 275; 2 Bish. Crim. Prac., §§ 285-6 and note 3; Com. vs. Smart, 6 Gray, 15; 2 Arch. Crim. Prac. & Pl., 448, and note; 2 Bish. Cr. Pr., § 285.)

II. It does not appear from the second count, how defendant became the agent of the State or county. (2 Arch. Crim. Pr. & Pl., [7 ed.] p. 562; Whart., Crim. L., [7 Ed.] §§ 1940, 41.) This count contains several distinct offenses.

WAGNER, Judge, delivered the opinion of the court.

The defendant, who was sheriff and collector of Daviess county, was indicted for embezzlement under the statute, (Wagn. Stat. [Ed. 1872], 459, § 14) for converting, secreting and investing certain moneys, which were alleged to have belonged to the State and county. The indictment contained two counts, and the first count, after alleging the election and qualification of the defendant as sheriff and collector, charged that as such sheriff and collector, he feloniously converted to his own use, and used by way of investment in merchandise and property, and made way with and secreted, large sums, or portions of the public moneys belonging to the State and county revenues, by him received as sheriff and collector for safe keeping, disbursement, transfer and other purposes, amounting in the aggregate to the sum of ten thousand dollars.

The second count charged, that the defendant was agent of the State and of the county, and as such agent he had in his possession and under his control and supervision, by virtue of his agency, a large amount of the public moneys belonging to the State and county, and, at certain periods stated, he feloniously converted to his own use, by way of investment in property and merchandise, and made way with and secreted certain sums specified. The latter charge was repeated as occurring at divers times to the jurors unknown.

There was a motion made to quash both counts. The reasons assigned for quashing the first count, were: 1st. That the money charged to have been embezzled was alleged to be the aggregate of ten thousand dollars, and was charged to have been both of the State and county revenue; 2nd. that it was alleged that the defendant received the money for safekeeping, for disbursement, for transfer and for other purposes, by virtue of his office; but the indictment failed to state, whether he received it for the one purpose or the other; 3rd. that it was alleged, that defendant converted the money in its aggregate amount to his own use, that he used the same money by way of investment in property and also in merchandise; that he made way with the same money, and also secreted it, which allegations were inconsistent and repugnant and could not all be true.

The objections assigned to the second count, were; 1st. That it did not appear how the defendant became the agent of the State and county, by whom or by what authority he was appointed such agent, nor for what purpose he was so appointed; 2nd. it did not appear how defendant became possessed of the money as agent of the State or county, nor by whom any money of the State or county was entrusted to him; 3rd. that the allegations were inconsistent and repugnant; and 4th, that the charges were so general as to afford no information to the accused of the precise money he was alleged to have embezzled, or from whom he received it, or how he came to have the same in his possession.

The court sustained the motion and quashed both counts, and the State appealed.

The following is the section of the statute upon which the indictment was drawn: “If any officer appointed or elected by virtue of the Constitution of the State, or any law thereof, including as well all officers, agents and servants of incorporated cities and towns, as of the State and counties thereof, shall convert to his own use, in any way whatever, or shall use by way of investment in any kind of property or merchandise, or shall make way with, or secrete, any portion of the public moneys, or any valuable security by him received for safekeeping, disbursement, transfer, or for any other purpose, or which may be in his possession, or over which he may have the supervision, care or control, by virtue of his office, agency or service, every such officer, agent or servant, shall upon conviction...

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  • State v. Rosegrant, 34553.
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    ...disjunctively the indictment must charge them conjunctively where the acts are not repugnant. Sec. 4020, R.S. 1929; State v. Flint, 62 Mo. 393; State v. Lockwood, 24 S.W. 1015; State v. Weyland, 105 S.W. 660; State v. Burk, 176 S.W. 487. Where the contradictory or repugnant expressions do n......
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