State v. Green

Decision Date10 January 1887
Citation24 Mo.App. 227
PartiesSTATE OF MISSOURI, Appellant, v. JOSEPH M. GREEN, Respondent.
CourtMissouri Court of Appeals

APPEAL from Lafayette Circuit Court, HON. JAMES W. DUNLAP, Special Judge.

Affirmed.

The case is stated in the opinion.

PEAK, YEAGER & BALL, for the respondent.

I. The contention by the state is that the collection of illegal taxes is within section 1484, Revised Statutes. By respondent the claim is that such offence is a misdemeanor, under section 1487, Revised Statutes.

II. Every statute should be construed with reference to the state of the law when it came into effect. Sedgw. on Stat., 124. All laws should be construed in favor of the liberty and security of the citizen. Potter's Dwarris, 49, 245, 247 and note; Wharton's Crim. Law, sect. 12.

III. Penal statutes should be strictly construed, and statutes creating crimes should not be extended by judicial construction to offences not plainly and unmistakably within their terms. Sedgw. Stat., 324, 326; U. S. v. Morris, 14 Peters (U. S.) 464; U. S. v. Clayton, 2 Dillon, 219; U. S. v. Reese, 8 C. L. J., 453. Upon all statutes such a construction should be placed as that one clause or section shall not frustrate or destroy another. Potter's Dwarris, 271, 188, 189; Railroad v. Cass Co., 53 Mo. 1.

IV. When the law descends to particulars such more special provisions must be understood as exceptions to any general provisions or general statutes enacted to the contrary. The special provisions must govern rather than the general. Potter's Dwarris, 272, 273; Bish. Crim. Law, sect. 78; Bish. Stat. Crimes, sect. 126; Pelt v. Pelt, 19 Wis. 193; Ottawa v. La Salle, 12 Ill. 339; Rounds v. Waymart,81 Pa. St. 397; Long v. Gulp, 14 Kansas, 412; State v. Sturgess, 10 Oregon, 58; McVey v. McVey, 51 Mo. 406; State v. Binder, 38 Mo. 453; State v. Clark, 54 Mo. 17; State v. McDonald, 38 Mo. 529; State v. Debor, 58 Mo. 395; State v. Green, 87 Mo. 583.

V. The indictment charges a large number of independent and distinct offences in a single count, committed at different times and against a different person.

PHILIPS, P. J.

The defendant was indicted in the Jackson county criminal court, from which, on application of the defendant, the case was removed by change of venue to the Lafayette county criminal court.

The indictment charged that the defendant, “on the twenty-third day of December, 1881, at the county of Jackson, state of Missouri, being then and there the duly elected and qualified collector of the revenues within and for said county and state, being then and there in the exercise of the functions of his office as collector aforesaid, by collecting and receiving taxes due upon the taxable personal and real property being and situate in Jackson county, Missouri, for the various purposes for which the same was liable to taxation for the year 1881, did then and there, knowingly, corruptly, wilfully, unlawfully and systematically, commit great fraud in his official capacity and under color of his office, in this: that he did then and there, knowingly, corruptly, wilfully, unlawfully and systematically, exact, demand and receive of and from divers tax-paying citizens of said county and state, various sums of money as taxes for year 1881, over and above the true amount of taxes due from said tax-paying citizens for the year 1881, to-wit: From H. Nevins, the sum of $10.00; S. M. Bauman, the sum of $2.50; from T. O. Defree, the sum of $2.00; from James M. Tyson, the sum of $2.50; from Samuel Machette, the sum of $5.01; from Ida Inger, the sum of $2.50,” and various sums from six other parties named in the indictment; “in all the sum of $44.51. And so the grand jurors aforesaid do say, and present that the said Jos. M. Green, being the officer of said county and state as aforesaid, in the manner and at the time and place aforesaid, the said sum of $44.51, in his official capacity and under color of his office, did unlawfully receive, steal, take and carry away, and in so doing did then and there systematically, knowingly, corruptly, wilfully and unlawfully commit great fraud in his official capacity and under color of his office, against the peace and dignity of the state.”

To this indictment the defendant demurred, assigning the following objections:

“1. That the acts set out and described in said indictment are not such acts as constitute official fraud under the laws of this state.

2. That the acts set out and described in said indictment do not constitute an offence under section number 1484, of the Revised Statutes of this state, under which said indictment is drawn.

3. That the acts set out and described in said indictment do not constitute any single offence known to the laws of this state; but if they constitute any offence whatever, they constitute a large number of separate and independent and distinct offences, and are all embraced in the same indictment and in a single count. Wherefore he prays judgment, and that by the court he may be dismissed and discharged from the premises in said indictment...

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