State v. Leonard
| Decision Date | 24 November 1909 |
| Court | Washington Supreme Court |
| Parties | STATE v. LEONARD. |
Department 2. Appeal from Superior Court, Pacific County; A. E. Rice Judge.
A. P Leonard was convicted of embezzlement of county funds, and appeals. Affirmed.
Chas. E. Miller, W. S. Fulton, and C. C. Dalton for appellant.
John T O'Phelan, for the State.
On July 22, 1908, the prosecuting attorney of Pacific county filed the following information against the appellant in the superior court of said county, the charging part of which is as follows: 'The said A. P. Leonard on or about the 6th day of January, 1907, at the county of Pacific, and state of Washington, was the duly elected, qualified, and acting county auditor in and for the county of Pacific and state of Washington, and as such county auditor was not allowed by law to be paid or receive any money, fees, or compensation for his services as such county auditor, except the salary provided and allowed to be paid him by law as such county auditor; that as such county auditor it became and was his duty, imposed by law, to receive certain moneys, fees, and deposits by virtue of said office; and that on or about said 6th day of January, 1907, at the said county of Pacific and state of Washington, the said A. P. Leonard, then and there being, did receive and there was paid to him, and such county auditor and by virtue of said office, the sum of one hundred and sixty-five ($165.00) dollars, lawful money of the United States, of the value of one hundred and sixty-five ($165.00) dollars, which said prosecuting attorney is unable to more particularly describe, the same being money, fees, and deposits which was paid to him, the said A. P. Leonard, as county auditor of said Pacific county for 'Hunters' Licenses' and should have been paid and delivered to the treasurer of said Pacific county by him, the said A. P. Leonard, on the first Monday of each month, after receiving the same; that said A. P. Leonard, as such county auditor, having received the said sum of one hundred and sixty-five ($165.00) dollars, as aforesaid, at and in said county and state, as aforesaid, then and there being, did then and there, on the 6th day of January, 1907, as aforesaid, unlawfully, willfully, knowingly, fraudulently, and feloniously fail to pay the said sum or any portion thereof to the said county treasurer, as required by law, but unlawfully, willfully, knowingly, fraudulently, and feloniously did take and convert to his own use and embezzle the said sum of one hundred and sixty-five ($165.00) dollars, received by him as aforesaid; that the said sum embezzled, as aforesaid, was the money and property of the county of Pacific, and state of Washington, and that said A. P. Leonard did by said failure to pay said sum to said treasurer as aforesaid, and by converting the same to his own use, as aforesaid, commit a felony, contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Washington.' To this information the appellant interposed a demurrer upon the following grounds: (1) That the said information does not substantially conform to the requirements of the Code of this state; (2) that more than one crime is charged against this defendant; and (3) that the facts charged in said information do not constitute a crime against the laws of the state of Washington. The demurrer was overruled, plea of not guilty entered, and trial had, which resulted in a verdict of guilty. Judgment and sentence followed, notice of appeal was given, and the proceeding is now in this court on appeal.
The errors assigned are (1) the overruling of the demurrer to the said information; (2) not requiring the prosecuting attorney to elect and designate under what statute he was prosecuting said action; and (3) the refusal of the court to give certain instructions. Chapter 147, p. 277, Laws 1905 establishing a license for hunters, provides that it shall be unlawful for any person to hunt, etc., without first having obtained a license therefor from the county auditor prescribing the payment of $1 for such license by residents of the state, $5 for nonresidents, and $50 for any nonresident alien. The statute also provides that the county auditor shall pay to the county treasurer all such fees collected by him, to be placed in the game protection fund to be used by the county commissioners for the propagation and protection of the game of such county. It is urged by the appellant that more than one crime is charged in this information, because the $165, it is argued, might have included 165 licenses at $1 apiece, or 33 licenses for nonresidents and 3 licenses for a nonresident alien, and 15 resident licenses or 3 nonresident licenses; that the testimony in the case was that the amount charged as having been embezzled represented $165 licenses, and that they were issued at different times and to different persons; that the embezzlement, if any, therefore constituted 165 offenses, each offense taken separately being a misdemeanor; and that, inasmuch as Ballinger's Ann. Codes & St. provides that the indictment or information must be direct and certain as regards the crime charged, and that the information must charge but one crime and in one form only, the information is insufficient. This contention is answered in 7 Enc. Pl. & Pr. p. 430, as follows: 'In an indictment against the public or other officer, great looseness is permitted in the description of the money or funds embezzled, because of the necessity of the case, and it is unnecessary to specify with certainty the particular kind of money or funds, whether gold or silver coins, or legal tender notes, or to give the denomination of each coin or note, or to specify from whom or at what particular time the money was received, but the indictment should be certain to the extent of alleging the embezzlement of a particular sum of money.' This is almost the universal announcement by courts and law writers on this subject, and arises from the necessity of the case, as it would be impossible to trace the particular fund or particular act or particular...
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State v. Ensley
...to the law-making body the further intention of making public funds the prey of such officers. In the recent case of State v. Leonard, 56 Wash. 83, 105 Pac. 163, the Supreme Court of Washington in passing on a similar question used this language: “The appellant's third proposition is that, ......
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State v. Ensley
... ... public funds against the conversion thereof by dishonest ... officials, it would be absurd to impute to the lawmaking ... [97 N.E. 117] ... body the further intention of making public funds the prey of ... such officers ... In the ... case of State v. Leonard (1909), 56 Wash ... 83, 105 P. 163, the supreme court of Washington, in passing ... on a similar question, used this language: "The ... appellant's third proposition is that, where the moneys ... are collected in a fiduciary capacity, proof of demand by one ... authorized to receive payment ... ...
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State v. Smith
... ... embezzlement and must be proven before a defendant can be ... convicted of the crime charged. (C. S., sec. 8551; 9 R. C ... L., Embezzlement, sec. 17, p. 1276, secs. 19, 44; 8 R. C. L., ... Criminal Intent, sec. 11; State v. Leonard, 56 Wash ... 83, 21 Ann. Cas. 69, 105 P. 163; State v. Moyer, supra.) ... W. D ... Gillis, Attorney General, Fred J. Babcock, Assistant Attorney ... General, and E. T. Knudson, Prosecuting Attorney, Kootenai ... County, for Respondent ... The ... distinct act of taking ... ...
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State v. O'Connor
...greater latitude is permitted “in the description of the money or funds embezzled.” People v. McKinney, 10 Mich. 54;State v. Leonard, 56 Wash. 83, 105 P. 163, 21 Ann. Cas. 69;Jackson v. State of Georgia, 76 Ga. 551; 7 Ency. Pl. & Pr. p. 430; Breese v. U. S. (C. C. A.) 106 F. 680. In Breese ......