State v. Krug

• Decision Date: 15 July 1895
• Citation: 12 Wash. 288,41 P. 126
• Parties: STATE v. KRUG.
• Court: Washington Supreme Court

41 P. 126

12 Wash. 288

STATE v. KRUG.

Supreme Court of Washington

July 15, 1895

Appeal from superior court, King county; James Z. Moore, Judge.

Adolph Krug was convicted of a crime, and appeals. Affirmed.

Anders and Gordon, JJ., dissenting.

Jas. Hamilton Lewis, Stratton, Lewis & Gilman, J Henry Denning, and Chas. F. Fishback, for appellant.

John F Miller, Pros. Atty., and A. G. McBride, for the State.

DUNBAR J.

A grand jury was impaneled in King county to investigate a charge of embezzlement, and other unlawful use of the funds of the city of Seattle, by its treasurer, Adolph Krug, the appellant herein. An indictment was returned against the appellant, and a trial was had before the Honorable J. Z. Moore, of Spokane county, who presided in the absence of the regular judge Hon. T. J. Humes. The indictment was based upon section 57 of the Penal Code, charging the unlawful use of the money of the city of Seattle in order to make a profit out of the same. Appellant introduced no testimony in his own behalf, but demurred to the complaint, raised many objections to the introduction of testimony, and, upon the testimony of the state, was found guilty as charged. Judgment was pronounced, and an appeal was taken to this court upon the errors alleged.

The first contention of the appellant is that the court erred in not sustaining a motion to quash the indictment, made upon the ground that the grand jury was not properly selected, properly impaneled, and properly chosen. It is insisted that the grand jurors had not been selected by the county commissioners for the years 1893 or 1894; that the same had not been certified in separate lists to the clerk of the superior court, as provided in section 58 of the Code of Procedure, which provides that "every board of county commissioners, on or before the first Monday of February in each year, shall select from the persons in their county qualified to serve as petit jurors the names of one hundred persons to serve as petit jurors for the ensuing year, and from the persons in their county, qualified to serve as grand jurors, the names of one hundred persons to serve as grand jurors for the ensuing year, and shall certify the same in separate lists to the clerk of the superior court." These provisions of the statute, it is insisted by the appellant, are mandatory, and intended to secure for each year a new list of qualified electors and freeholders; and that, the question of the qualification of the grand jury having been timely raised, it was prejudicial error on the part of the court to overrule the motion. We do not think this contention can be sustained. We are inclined to think that this was only an irregularity which does not affect the substantial rights of the defendant. Section 62 of the same chapter which provides for the selection of the grand jury provides especially that "the failure on the part of any officer to perform the duties required within the time, or other irregularity in said drawing, shall in no way invalidate the selecting, drawing or summoning of said jurors." This, it seems to us, would sufficiently indicate that the intention of the legislature was that the provision relied upon by the appellant was not a mandatory provision, the omission of which would invalidate the proceedings. But, as further showing that there is no particular virtue in the provision, section 63 of the same chapter provides that "if for any cause the court shall see fit to set aside the venire for grand or petit jurors, returned as above provided, an open venire may thereupon issue to the sheriff," etc.; and, as further sustaining the same idea, the latter part of section 58 (the section relied upon by appellant) provides that "if from any cause the county commissioners are unable to select the full number of names in this section provided for, they shall select such less number as they may agree upon." The whole chapter seems to refute the idea that the provisions of section 58 are mandatory, or that the defendant has any vested right in any particular mode of choosing the grand jury. Mr. Bishop, in his work on Criminal Procedure (section 875, 3d Ed.), under the head of "Directory Statutes," says: "A statute may be only directory to the officers; as that the grand jurors shall 'be summoned at least five days before the first day of the court,' or that the court shall impanel the grand jury on the first day of the term,-a noncompliance with which is no ground for setting aside the proceedings on application of the defendant." The objection in the case at bar is simply an objection of time. We think, under the authorities and under the provisions of the statute itself, the objection should not be sustained, and that the court committed no error in refusing the motion. In fact, we judge from the record in this case that it was really not the desire of the counsel for the defense that this motion should be sustained by the court, for the new judge was informed by the counsel that it had been the practice of the court that the jury had a right to remain until it should please the judge to issue a new venire, and that the judge of that court had ruled against him upon this contention. But, however that may be, nothing appears in the record to indicate that the defendant was in any way injured by the action of the court, or that the grand jurors were not qualified grand jurors under the law. The qualification of a grand juror, after all, is the main question to decide, and that question could have been decided in each instance by an examination of the individual juror.

The next contention is that section 57 of the Penal Code does not include within its provisions a city officer. The section is as follows: "If any state, county, township, city, town, village or other officer, elected or appointed under the constitution or laws of this state, *** shall, in any manner not authorized by law, use any portion of the money intrusted to him for safe keeping, in order to make a profit out of the same, or shall use the same for any purpose not authorized by law, he shall be deemed guilty of a felony," etc. The defendant was an officer under a freeholder's charter, to wit, one voted by the people in cities of the first class, viz. the city of Seattle, and it is contended, therefore, that he is not a city officer, elected or appointed under the constitution, because he is nowhere denominated or designated as one of the officers for the execution of the mandates or provisions of that instrument; that he is not an officer elected or appointed under any law of the state of Washington prescribed by the legislature of the state for the execution of any law of the state of Washington; and that, therefore, he is not within the provisions of section 57 of the Penal Code, nor within the letter or intendment of the same. We think that such a construction of the law would be forced and unnatural, and the authorities cited by the appellant to sustain his contention are not in point. Most of them enter upon a discussion of who were or who were not state officers. It is not contended by the state in this case that the appellant is a state officer, but that he, as a city officer, falls within the provisions of section 57. The statute specially names a city officer, and it seems to us that there can be no question that such officer is elected under the constitution and laws of this state. The legislature, by authority of the constitution, grants the charters to cities of the first class, and under the provisions of the charter which is granted by the legislature the city treasurer is elected. Of course, this is a somewhat indirect operation of the law, but the election of the city treasurer nevertheless flows from the laws and the constitution, and certainly, were it not for the laws of the state, the office of city treasurer of the cities of the first class could not exist. Consequently, it must logically follow that this officer is elected under the constitution and laws of the state, for the law conferring upon cities a right to provide for the election of its officers is a delegation of the power of the state to the city. Section 521 of the General Statutes provides that "the legislative powers of any city, organized under the provisions of this act *** who, together with such other elective officers as may be provided for in such charter, shall be elected at the times, in such manner, and for such terms, and shall perform such duties and receive such compensation, as may be prescribed in such charter." As we have before said, the action of the city, and the validity of its acts in electing its treasurer, all flow from and are dependent upon these provisions of the law. The constitution itself, in section 14 of article 11, seems to have initiated the idea upon which this statute is based, and provides that the making of profit out of county, city, town, or other public money, or using the same for any purpose not authorized by law, by any officer having the possession or control thereof, shall be a felony, and shall be prosecuted and punished as prescribed by law; and the enactment of section 57 is in perfect harmony with this provision of the constitution, and makes provision for carrying it into effect. It would, indeed, destroy not only the manifest intention of the constitution, but of the statute, to hold that this provision of the statute did not apply to treasurers who were not directly elected under the provisions of the law.

A question, however, which has given the court vastly more trouble than the one just discussed, and which is really the vital question in this case, as we view it, is embodied in the contention that the demurrer should have been sustained because the indictment did not state...