State v. McKinney
| Decision Date | 07 April 1906 |
| Parties | STATE OF IOWA, Appellant, v. H. H. MCKINNEY, Appellee |
| Court | Iowa Supreme Court |
Appeal from Harrison District Court.-- HON. W. R. GREEN Judge.
Affirmed.
C. W Mullan, Attorney General; L. De Graff, Assistant Attorney General, and L. W. Fallon, County Attorney, for the State.
Roadifer & Arthur and Bolter Bros., for appellee.
THE opinion states the case.-- Affirmed.
On September 8, 1903, the grand jury of Harrison county, Iowa returned an indictment against the appellee, the body of which instrument was in words as follows:
The grand jury of the county of Harrison, in the name and by the authority of the state of Iowa, accuse Horace H. McKinney of the crime of embezzlement committed as follows: The said Horace H. McKinney, on or about the sixth day of January in the year of our Lord one thousand nine hundred and two, in the county aforesaid, who was then and there an officer of said county, a corporation duly organized and existing under the laws of the state of Iowa, to wit, the treasurer of said Harrison county, duly elected and qualified and legally authorized and empowered to perform all the duties of said office, and that the said Horace H. McKinney, as such officer and treasurer of said county, was then and there entrusted with, and did then and there have in his possession and under his care by virtue of his said office, certain public moneys, to wit, the sum of forty thousand three hundred sixty-six dollars and ninety-seven cents, of the property and effects of said county, and of the value of forty thousand three hundred sixty-six dollars and ninety-seven cents, and that said Horace H. McKinney, did then and there unlawfully, fraudulently, and feloniously embezzle without the assent of the said county, or any person thereto authorized, of the said public moneys aforesaid, to wit, the sum of two thousand seven hundred sixty-six dollars and five cents, and of the value of two thousand seven hundred sixty-six dollars and five cents, for which he, the said Horace H. McKinney, as such officer and treasurer aforesaid, has failed and neglected to account, although demand has been made of the said Horace H. McKinney by the county aforesaid; the custody and care of which he, the said Horace H. McKinney, was then and there as aforesaid entrusted, and which he, the said Horace H. McKinney, did then and there have and hold by virtue of his said office of treasurer of said Harrison county, Iowa, contrary to and in violation of law.
To this indictment defendant demurred on grounds stated as follows:
(1) That the indictment fails to charge that the defendant as a public officer failed or refused to keep the money received by him as such officer in any place of custody or deposit that was provided by law for keeping such money until the same was withdrawn therefrom as authorized by law. (2) That the indictment fails to charge that the defendant did keep or deposit such public funds in any place other than the place authorized for the keeping and deposit of such funds. (3) That the indictment fails to charge that the defendant as a public officer converted to his own use any of the public funds or property which came into his hands by virtue of his office. (4) That the indictment fails to charge that the defendant did use by way of investment in any kind of property or loans without authority of law, any of the public funds coming into his hands as such officer. (5) That said indictment fails to charge that lawful and sufficient demand was made upon defendant to account for funds or property coming into his custody as a public officer. (6) That the indictment fails to charge that demands were made upon the defendant to account for public funds and property coming into his hands by any person entitled to receive the same or at a time at which any person had a right to make demand.
The demurrer was sustained by the trial court, and the state appeals.
1. Code, section 4840, undertakes to define the crime of embezzlement by public officers. It provides that any state, county, township, school, or other public officer charged with the collection, safe keeping, transfer or disbursement of public money who (a) fails or refuses to keep the same in the place of custody or deposit provided by law for such purpose until the same is withdrawn therefrom as authorized by law; or (b) keep or deposit such money in any other place than such authorized place of custody or deposit; or (c) unlawfully converts such money to his own use in any way whatever; or (d) uses it by way of investment in any kind of property; or (e) loans without the authority of law any portion of the public moneys intrusted to his hands; or (f) converts to his own use any money coming into his hands by virtue of his office, he shall be deemed guilty of embezzlement.
In substantially this form the statute had stood for many years prior to the session of the Twenty-Sixth General Assembly (Laws 1896, page 69, chapter 67), and most of our decisions touching the law pertaining to this offense were rendered thereunder. The General Assembly above named amended the section by adding thereto the following words: "Any such officer who shall receive any money belonging to the state, county, township, school, or municipality or state institution of which he is an officer, shall be deemed to have received the same by virtue of his office and in case he fails or neglects to account therefor upon demand of the person entitled thereto, he shall be deemed guilty of embezzlement." The effect of this amendment is one of the principal questions presented by the appeal now before us. It will be observed from the form of the indictment that it was framed on the theory that the added clause does not simply provide an additional regulation applicable to charges of embezzlement under the statute as it stood before the amendment was enacted, but that it creates a new or additional ground on which an indictment may be sustained without alleging any of the specific acts formerly prohibited. On the other hand, appellee contends that no new ground for the charge of embezzlement has been created by the amendment and that in order to properly charge the crime against a county treasurer the indictment must still allege, and the state must prove, the commission of some one of the specific acts denounced by the statute prior to the amendment. If this latter theory be correct and the added clause is to be treated as having no other effect than to introduce a new element into the specific offenses already defined by the statute, it would seem to follow that no matter how grossly the treasurer may betray his trust by loaning, using, converting, and squandering the public funds he may avoid all criminal liability if from his private fortune or by the liberality of his friends he is able to make good his defalcation when called upon to account.
We are aware that his theory is not without apparent support in some of our earlier cases, but conceding for the purposes of the case before us the...
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