State v. Gardiner
| Decision Date | 25 October 1927 |
| Docket Number | 38456 |
| Citation | 215 N.W. 758,205 Iowa 30 |
| Parties | STATE OF IOWA, Appellee, v. JOE GARDINER, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED JANUARY 13, 1928.
Appeal from Dallas District Court.--W. S. COOPER, Judge.
The defendant was convicted in the court below of the crime of embezzlement as a public officer, and appeals.
Affirmed.
Harry Wifvat, for appellant.
John Fletcher, Attorney-general, Neill Garrett, Assistant Attorney-general, Blake Willis, County Attorney, and George J. Dugan, for appellee.
I.
The indictment in this case charged the defendant with the crime of embezzlement, as township clerk, of funds belonging to Beaver Township, Dallas County, Iowa. A demurrer was interposed to the indictment, which was overruled, as was also a motion to quash an amendment to the indictment, filed after the ruling on the demurrer. The several grounds of the demurrer to which it is necessary to refer are (a) that the indictment is bad for duplicity; (b) that it is so indefinite and general in terms that it did not sufficiently apprise the defendant of the nature of the crime and the facts constituting its commission to enable him to prepare a defense; (c) that it does not charge that a demand was made upon the defendant to account for the money or property coming into his custody as a public officer; and (d) that it does not designate or name the person authorized by law to make such demand. The indictment is based upon Section 13027, Code of 1924, and charges that:
"The said Joe Gardiner did then and there unlawfully, knowingly, fraudulently, and feloniously embezzle, without the assent of said township trustees or any person thereto authorized, of said public moneys belonging to said township the sum of four thousand three hundred sixty-six dollars and sixty-six cents ($ 4,366.66) of the value of four thousand three hundred sixty-six dollars and sixty-six cents ($ 4,366.66) the custody and care of which he, the said Joe Gardiner, was then and there, as aforesaid, intrusted with, and which he did then and there have and hold, by virtue of his office of clerk of Beaver Township, Dallas County, Iowa, and for which the said Joe Gardiner, as such officer and clerk as aforesaid, has failed and neglected to account, and that demand for the payment of said moneys has been made of the said Joe Gardiner by the township trustees through their chairman, Hans Meier, and by Gertrude Bryan-Friedrichsen and Fred Schnoor, his successors in office as clerk of said township, the person or persons entitled thereto, and that he has failed to account for or pay over to either of said officers or any proper officer any of said moneys or funds."
The above section enumerates various grounds upon which an indictment charging embezzlement of public funds by a public officer may be based. But one crime, however, that of embezzlement by a public officer, is created or defined. It may, under the statute, be committed in different ways, but the crime defined is, nevertheless, embezzlement. As already appears, the indictment charged that the funds which it is alleged were embezzled were intrusted to and came into the possession of the defendant by virtue of his office of township clerk. Any or all of the various grounds enumerated in the statute may, by the use of the disjunctive, be alleged in the indictment. The effect thereof is not to charge more than a single offense, but merely the various methods by which it may have been committed. The indictment in such case is not bad for duplicity. State v. McKinney, 130 Iowa 370, 106 N.W. 931; State v. McDougal, 193 Iowa 286, 186 N.W. 929; State v. Browning, 153 Iowa 37, 133 N.W. 330; State v. McMahon (Iowa), 211 N.W. 409 (not officially reported); State v. Berg, 200 Iowa 627, 204 N.W. 441.
The indictment in this case is not lacking in explicitness. It charges every essential and material element of the crime, designates the office, the amount embezzled, and also the failure to account, on demand, for the sum charged to have been embezzled. Nothing is lacking to enable the defendant to make full and adequate preparation for his defense. As stated, the indictment in specific terms charges that demand was made by the chairman of the board of township trustees and by the defendant's successors in office, naming them. The demurrer to the indictment was properly overruled.
II. The amendment to the indictment, which was filed by the county attorney after due application and permission of the court to do so, struck from the indictment all that part thereof commencing with and following the words "by the township trustees," and inserted in lieu of said stricken words the following: "By Gertrude Bryan-Friedrichsen, his successor in office as clerk of said township, the person entitled thereto, and that he has failed to account for or pay over to the said Gertrude Bryan-Friedrichsen, his successor in office, any of said moneys or funds." So that the indictment, as amended, alleged a demand by Gertrude Bryan-Friedrichsen, defendant's immediate successor in office, only. The effect of the amendment was simply to eliminate surplusage. But it is claimed that the amendment charges a different crime from that alleged in the original indictment. This contention is without merit.
What is now Section 13029, Code of 1927, was originally enacted as Chapter 67, Laws of the Twenty-sixth General Assembly, and made a part of Section 3908, Code of 1873. The latter section, as amended, became Section 4840, Code of 1897. It so remained until the revision of 1924, when it was printed as an independent section. This, however, neither altered nor changed the effect of the statute, nor did it create a separate and distinct crime. It remained as it had always been,--a ground upon which an indictment charging embezzlement by a public officer might be based. The distinction pointed out in State v. Hoffman, 134 Iowa 587, 112 N.W. 103, is not material in this case.
Prior to the enactment of Chapter 243, Laws of the Forty-second General Assembly, permitting amendments in matters of substance, indictments could be amended only in matters of form, in the name of a person, as to the ownership of property, or the description of any person or thing. Section 13744, Code of 1924. It was necessary that the indictment allege that a demand was made by the person entitled to receive the funds, naming him, but it was not essential that repeated demands be alleged or proven. Both the indictment and the amendment alleged that demand was made by Gertrude Bryan-Friedrichsen, defendant's immediate successor in office. This was sufficient, and the allegation of demand by the township trustees was mere surplusage, and its elimination by an amendment to the indictment could have worked no possible prejudice to the defendant.
III. Some difficulty was encountered by counsel in making Mrs. Friedrichsen understand the difference between mere conclusions and the recital of the facts, while being examined as to what she did by way of making demand upon the defendant to account for the funds in question. It is also contended by defendant that the demand claimed to have been made by Mrs. Friedrichsen was after she had resigned from the office of township clerk. There may have been some uncertainty in the testimony on this point, but the question was properly left to the jury to decide.
IV. Defendant, prior to his resignation in April, 1925, had been township clerk of Beaver Township for many years. During the latter part of his term in office, he was cashier of the Farmers...
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