State v. Rees

• Decision Date: 27 December 1897
• Citation: 22 So. 829,76 Miss. 435
• Court: Mississippi Supreme Court
• Parties: STATE OF MISSISSIPPI v. WILLIAM H. REES. [*]

22 So. 829

76 Miss. 435

STATE OF MISSISSIPPI v. WILLIAM H. REES. ^[*]

Supreme Court of Mississippi

December 27, 1897

November 1898

FROM the circuit court of Prentiss county HON. NEWNAN CAYCE Judge.

The appellee (Rees) was the clerk of the chancery court and ex officio clerk of the board of supervisors of Prentiss county. He was indicted for the violation of the sections of the code mentioned in the opinion. His demurrer to the whole indictment was sustained and the state appealed. The code sections mentioned are as follows:

"1063 (2787). The same; officers and persons exercising public employments, and express trustees.--If any state officer or any county officer, or an officer in any district or subdivision of a county, or an officer of any city, town or village, or a notary public, or any other person holding any public office or employment, or any executor, administrator or guardian, or any trustee of an express trust, any master or commissioner or receiver, or any attorney at law or solicitor, or any banker or collecting agent, or other person engaged in like public employment, or any other person undertaking to act for others and intrusted by them with business of any kind, or with money, shall unlawfully convert to his own use any money or other valuable thing which comes to his hand or possession by virtue of his office or employment, or shall not, when lawfully required to pay over such money or deliver such thing, immediately do so according to his legal obligation, he shall, on conviction, be imprisoned in the penitentiary not more than twenty years, or be fined not more than one thousand dollars, or imprisoned in the county jail not more than one year.

"1066 (2790). The same; by officers and official employes generally.--If any officer, or other person employed in any public office, shall commit any fraud or embezzlement therein, he shall be imprisoned in the penitentiary not more than ten years, or in the county jail not more than one year or be fined."

Wiley N. Nash, attorney-general, for appellant.

The demurrer went to the whole indictment. A general demurrer can only prevail when the whole pleading is so fatally defective that no judgment could be pronounced upon the verdict. Hemingway v. State, 68 Miss. 408.

J. M Boone and B. A. P. Spellman, for appellee.

The indictment is bad, for the reason that the two counts charge different offenses, the punishment of which is different. The punishment under § 1063, on which the first count is predicated, is not more than twenty years in the penitentiary, and the punishment under § 1066, upon which the second count is predicated, cannot exceed ten years.

OPINION

WHITFIELD, J.

The first count in the indictment attempts to charge an offense under § 1063, code of 1892, and the second attempts to charge the offense denounced by § 1066. The offense sought to be charged in the first count may be punished by twenty years' imprisonment in the penitentiary; the latter could not be punished with more than ten years in the penitentiary. The indictment, therefore, seeks to charge two distinct felonies of different degrees and different punishments. A demurrer was interposed on this ground amongst others, and sustained, and the indictment quashed, no leave to amend being applied for. The court exercised the discretion, given it in such cases, correctly, that the prisoner might not be embarrassed in his defense,...