State v. Murphy

• Decision Date: 07 February 1921
• Docket Number: 21426
• Citation: 124 Miss. 440,86 So. 868
• Court: Mississippi Supreme Court
• Parties: STATE v. MURPHY

86 So. 868

124 Miss. 440

STATE v. MURPHY

No. 21426

Supreme Court of Mississippi

February 7, 1921

1 EMBEZZLEMENT. Indictment for embezzlement by chancery clerk held not subject to demurrer.

An indictment for embezzlement under section 1141, Code 1906 (Hemingway's Code, section 869), which charges that the defendant was a duly and legally elected and qualified chancery clerk, and that by virtue of his office, while acting in his official capacity, certain funds came into his possession which belonged to the unknown heirs of named persons, and that the defendant, intending and designing to cheat and defraud said unknown heirs, feloniously converted to his own use and embezzled said funds with the felonious intent to deprive them of their money, is a good indictment even though it needlessly sets out the giving of a note for said funds payable to said officer, his successor or bearer and that said note, was sold or transferred to a named bank and the funds so obtained for said note were embezzled, etc.

2. INDICTMENT AND INFORMATION. Failure of indictment for embezzlement to aver that "unknown heirs" were living persons unknown to grand jury not fatal.

The words "unknown heirs" of named persons means the living heirs of such persons whose names are to the grand jurors unknown, and an indictment is not demurrable for failure to to specifically set forth that such heirs were living, and that their names were unknown to the grand jury.

HON. D GRAHAM, Judge.

APPEAL from circuit court of Harrison county, HON. D. GRAHAM, Judge.

John J. Murphy was indicted for embezzlement. A demurrer to the indictment was sustained, and the state appeals. Reversed and remanded.

Judgment reversed, and cause remanded.

H. C. Holden, assistant attorney-general, for the state.

Right of The State to Appeal. There can be no question of the right of the state to appeal from the judgment sustaining the demurrer to the indictment. Such appeals are authorized by paragraph 1, section 16, Hemingway's Code (section 40, of the Code of 1906).

The Demurrer Should Have Been Overruled. The defendant demurred and assigned sixteen grounds for demurrer. There is no indication from the judgment of the court below of the reason or reasons for sustaining the demurrer; the court in its judgment, does not state upon what ground or grounds of the demurrer the same was sustained. It will therefore be necessary to take up categorically each separate ground for demurrer assigned by the defendant in the court below.

It is here urged against the indictment that although it charges the defendant with the embezzlement of nine hundred ninety-seven dollars and thirty-five cents with interest, it does not state any facts showing that said money came into his hands by virtue of his office or that he held the same in trust for any other person.

By reference to the indictment at page two and page three of the record, it will be seen that this ground of the demurrer is untenable. The indictment does charge that this money came into his hands by virtue of his office, and that he held same for the unknown heirs of James Ramsay and John Parker, deceased.

Sixth Ground: It is here urged against the indictment that it does not charge that the defendant converted property or money belonging to any living person or corporation. The indictment charges that the money embezzled was the property of the unknown heirs of James Ramsay and John Parker, deceased. The heirs of James Ramsay and John Parker may or may not be living. But this is immaterial. Whether or not they are living is a fact yet to be ascertained. It is not essential that the indictment charge that the money embezzled belonged to a living person. It was only necessary to charge that the money did not belong to the chancery clerk, but that it belonged to certain persons for whom, by virtue of his office, he was acting in a fiduciary capacity and that while acting in such capacity as chancery clerk he converted the money to his own personal use.

Eighth Ground: It is here urged against the indictment that it did not show that the said note was a valuable thing or had any value whatever. The indictment charges that the amount of the note was nine hundred, ninety-seven dollars and thirty-five cents and that the defendant negotiated the note and obtained this amount, which shows that the note was a valuable thing, in the first place.

Ninth Ground: It is here urged against the indictment that it does not show how the alleged funds of the unknown heirs of James Ramsay and John Parker, deceased, came into the possession of the defendant, nor the purpose for which they were held by the defendant. It was not necessary to show the purpose for which these funds were held. It was only necessary to charge to whom they belonged and that they came into the possession of the defendant by virtue of his office. An indictment for embezzlement is not bad for failure to show from whom or how the money was received. Richburger v. State, 90 Miss. 906, 44 So. 772.

"In an indictment or information against a public officer or employee for embezzlement, it is sufficient to follow the statute and allege acts and facts therein declared to constitute a crime. The official character of the defendant should be set forth in addition to the allegation as to defendant's official character, the indictment or information must aver that the money or other property embezzled was received or held by him by virtue of his office or employment; but it has been held that the purpose for which the money was entrusted to defendant need not be set out." 20 C. J. 476, paragraph 10; Hemingway v. State, 68 Miss. 371, 8 So. 317; State v. Jones, 102 Miss. 89, 58 So. 782; People v. Cobler, 108 Cal. 538, 41 P. 401; State v. Eames, 3 So. (La.) 93, Embezzlement is a statutory and not a common-law crime. McInnis v. State, 97 Miss. 280, 52 So. 634. In charging the crime, therefore, the indictment should follow the statute. The indictment in this case does follow the statute. See section 869, Hemingway's Code (section 1141, Code of 1906).

Eleventh Ground: It is here urged against the indictment that it does not charge embezzlement of the funds of the unknown heirs of James Ramsay and John Parker, deceased. This objection goes to the whole indictment. It is submitted that the indictment does charge embezzlement of said funds and it is sufficient for that purpose. The demurrer to the indictment should have been overruled by the court. 20 C. J. 463, citing cases and discussing the rule. In general, an indictment for embezzlement must show the ownership of the property alleged to have been embezzled with the same particularity as in an indictment for larceny. 20 C. J., paragraph 5.

What is the particularity necessary in an indictment for larceny in this state? The indictment must state the entire Christian name as well as the surname of the owner of the property. Whenever the name of the owner cannot be ascertained, the indictment shall aver the larceny of the property of some person to the jurors unknown, and if the owner of the property should be discovered on the trial the accused will be acquitted. Unger v. The State, 42 Miss. 642.

In the case at bar the property embezzled is alleged to be the property of the unknown heirs of James Ramsay and John Parker, deceased. It is submitted that this averment of ownership is sufficient. Surely if to allege ownership as being in persons unknown is sufficient in an indictment for larceny, then to allege, in an indictment for embezzlement, ownership in the unknown heirs of a deceased person, is sufficient. Ownership in the indictment in the case at bar is alleged with the same, if not more particularity as is required in an indictment for larceny.

Thirteenth Ground: It is urged against the indictment that it does not show that James Ramsay and John Parker, deceased, left any heirs or that there are any heirs now living. It is not necessary for the indictment to show this. It is sufficient if the indictment charge that the funds belong to certain unknown persons and that these funds were converted by the defendant to his own personal use.

Fourteenth Ground: It is here urged against the indictment that it is vague, uncertain, indefinite and insufficient, and on the fifteenth ground that it charges no crime known to the law. The reading of the indictment will completely overturn this objection. It is neither vague, uncertain nor indefinite. It charges the crime of embezzlement under section 869, Hemingway's Code, and under section 872, Hemingway's Code.

Sixteenth Ground: It is here urged against the indictment that it is bad for duplicity in that it charges two felonies in one count. The indictment charges only one felony, namely embezzlement by a county officer by reason of the conversion to his own use of money which came into his hands and possession by virtue of his office.

The judgment of the lower court sustaining the demurrer should be reversed. If this be done, then under section 16, Hemingway's Code, the defendant may be again indicted and tried for the same offense. Whatever may be the decision of this court, a written opinion would be of great assistance to the prosecuting officers of the state.

White & Ford and Mize & Mize, for appellee.

The demurrer was properly sustained. This is an indictment drawn under section 869 of Hemingway's Code, providing, among other things, that if any county officer shall unlawfully convert to his own use any money or other valuable thing which comes into his hands or possession by virtue of his office or employment, he is guilty of embezzlement. It is unnecessary to state in this brief the grounds, of the demurrer, as they are found at page 6 of the record, and every...