State v. Hays

• Decision Date: 31 October 1883
• Citation: 78 Mo. 600
• Parties: THE STATE v. HAYS, Appellant.
• Court: Missouri Supreme Court

78 Mo. 600

THE STATE

v.HAYS, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Dade Circuit Court.--HON. J. D. PARKINSON, Judge.

AFFIRMED.

E. J. Smith for appellant.

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

PHILIPS, C.

The defendant was indicted at the October term, 1877, of the Dade circuit court for embezzling public funds held by him as trustee of North township in said county. At the trial of this indictment, at the October term, 1879, after the empanelling of the jury, the record recites: “Whereupon the State, by her said attorney, proceeded to offer testimony to sustain the issue upon her part, which testimony is by said defendant objected to, by way of demurrer to the sufficiency of the indictment in this cause, which objection by way of demurrer interposed by said defendant is by the court sustained, and said indictment is for naught held, and whereupon the jury is discharged from the further consideration of this cause, without prejudice to the rights of said State of Missouri or the defendant herein.” At the same term of this entry the defendant was re-indicted for the same offense. There are three counts in the indictment, charging the same offense in varying forms. The jury returned a verdict of guilty on the second count, without assessing the punishment, or in form making any finding as to the other counts. The court thereupon assessed the punishment at five years in the penitentiary, that being the minimum punishment fixed by law.

The substance of the second count of the indictment on which the defendant was convicted is, that from 1875 to 1877 the defendant was elected to and held the office of township trustee of North township, in said Dade county; that said county had prior thereto adopted the township organization; that said office was a public office by virtue of the laws of the State; that defendant, by virtue of his said office, received for safe keeping, transfer and disbursement, the sum of $500, of the public moneys belonging to the school fund of said North township, and that between the -- day of April, 1876, and the -- day of August, 1877, the defendant unlawfully, willfully and feloniously did embezzle and make way with the sum of $436.71 of said public money, belonging to the school fund of said North township. The indictment then set out the proceedings had under the first indictment, manifestly for the purpose of preventing the bar of the statute of limitations; and concluded with the words “contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Missouri.” Defendant brings the case here on appeal.

I. The indictment was manifestly founded on section 41, article 3, page 459, Wagner's Statutes, which declares that: “If any officer, appointed or elected by virtue of the constitution of this State, or any law thereof, or if any agent or servant of this State, 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 safe keeping, disbursement, transfer, or for any other purpose, of 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, be punished by imprisonment in the penitentiary not less than five years.”

1. INDICTMENTS.

The indictment is good under this section. We will dispose of the objections made to it as they occur. It is objected that it does not conclude, in the language of the constitution, “against the peace and dignity of the State.” The only difference, if it may be so called, between that and the indictment, is, that the indictment adds the words “of Missouri.” This objection is without merit. The added words are but what the constitutional language implies, and the addition in no wise enlarged, varied or changed the phrase or the sense.

2. ____.

II. It is alleged that the bill of indictment was not indorsed “a true bill,” nor signed as such by the foreman of the grand jury. This objection comes for the first time in this court. Time and again it has been held by the Supreme Court that this objection comes too late after verdict. State v. Mertens, 14 Mo. 94; State v. Burgess, 24 Mo. 381; State v. Harris, 73 Mo. 287. This indictment having been found in October, 1879, section 1798, Revised Statutes 1879, does not apply.

3. EMBEZZLEMENT BY PUBLIC OFFICER: school funds: statute, construction of.

III. It is next claimed, that at the time of the enactment of the section of the statute on which the indictment is based, the township organization had not been provided for by legislative act; and, therefore, the office held by defendant was not in the purview of the said 41st section of the statute, and could not have been in the legislative mind at the time of its passage in 1870. This statute was necessarily prospective in its operation. It applied, by its terms, to the then existing officers of the State, of whatever grade, so that they only came into official being “by virtue of the constitution of this State, or any law thereof.” As a corollary to this it would apply to any officer thereafter created, provided, only, that he be “appointed or elected by virtue of the constitution or any law thereof.” The township organization was created by law pursuant to the constitution. So it remains only to be ascertained from the township law itself whether or not the office attributed to the defendant in the indictment, was provided for or created by the act for the organization of counties into townships. By section 2, article 4 of this act, (Laws 1873, p. 100,) the “township trustee” is one of the enumerated officers. All through the act he is recognized as an officer. Article 7 defines his duties. Section 1. “The township trustee of each township shall receive and pay over all moneys raised therein for defraying township expenses.” From sections 3 and 6 it is manifest that among the moneys which it was in the contemplation of the legislature would come into his hands by virtue of his office, were school moneys.

4. CONSTRUCTION OF STATUTES.

But an argument in support of appellant's position, is sought to be drawn from the enlargement of the phraseology of the section in the statute of 1870, found in section 1326, Revised Statutes 1879. It is contended that the words “including as well all officers, agents and servants of incorporated cities and towns, or municipal townships or school districts” contained in the law of 1879 is an implied declaration of the legislature that such officers were not hitherto within the provisions of the statute. With as much logic might it be asserted that sheriffs, county treasurers and collectors were not embraced in the law prior to this act of 1879; for following the words last quoted in section 1326, are these: “as of the State and counties thereof.” So the whole of it in effect reads: “Including officers of the State, county, incorporated towns or cities, municipal townships or school districts.” As well say that prior to the statute of 1879 a constable could not have been indicted under the statute of 1870 for embezzling funds in his official hands. Perhaps the most rational exposition of the particularity of the section in the revision, was to apply its provisions in explicit terms to the enumerated class, so as to leave no doubt in the mind of the querulous as to the large scope and comprehension of this statute, striking at a growing crime in the land, the misappropriation of public funds. The intention of the legislature must be ascertained from the words of the statute, and not from any general inferences to be drawn from the nature of the objects dealt with by the statute. This is the enunciation of a learned judge in Regina v. Doubleday, 3 Ellis & Ellis Q. B. 514, where it is held that a statute enumerating “overseers of the poor, constables, assessors, collectors and any other persons whomsoever,” meant just what it said, and applied to all persons, and was not restricted to the persons particularized in the act. Nothing could be broader or more comprehensive than the words “any officer” employed in the 41st section above quoted.

5. CRIMINAL LAW: twice in jeopardy.

IV. It is urged that by being put to trial under the second indictment defendant was twice placed in jeopardy for the same offense. Without undertaking to discuss in detail the application of the rule or principle of law invoked, touching what constitutes jeopardy, it is sufficient, for the purposes of this case, to say that if the...