State v. Steers

• Decision Date: 08 March 1906
• Parties: STATE, Respondent, v. PETER A. STEERS, Appellant
• Court: Idaho Supreme Court

85 P. 104

12 Idaho 174

STATE, Respondent, v. PETER A. STEERS, Appellant

Supreme Court of Idaho

March 8, 1906

EMBEZZLEMENT BY COUNTY OFFICER-WHEN INFORMATION SUFFICIENT TO CHARGE-PAYMENT TO SHERIFF OF MONEY FOR RETAIL LIQUOR DEALER'S LICENSE-HIS DUTY-INSTRUCTIONS TO JURY AS TO CAUSE OF EMBEZZLEMENT-WHEN NOT ERROR TO REFUSE TO GIVE REQUESTS TO APPELLANT-EMPLOYMENT OF PRIVATE COUNSEL.

1. The crime of embezzlement is committed by an officer of any county, city or municipal corporation of this state when he fraudulently appropriates to his own use any money or property which he has in his possession or under his control by virtue of his trust as such officer. (Rev. Stats., secs 7065, 7066.)

2. An information that charges a sheriff of a county of this state with willfully, unlawfully, fraudulently and feloniously appropriating to his own use certain money paid to him in his official capacity is sufficient under the provisions of sections 7065, 7066, supra.

3. Attorneys other than the attorney general in this court, or the county attorney in the lower court, may assist in the prosecution by and with the consent of the prosecuting officer, and it is not error to allow such appearance in the trial court.

4. When the court on its own motion has fully and fairly instructed the jury on all the essential elements constituting the crime of embezzlement, it is not error to refuse requests for instructions by counsel for appellant.

5. Instructions in this case examined, and no error appearing. Held, sufficient to sustain the judgment.

(Syllabus by the court.)

APPEAL from District Court of the Fifth Judicial District for Bannock County. Hon. Alfred Budge, Judge.

Appellant was convicted of the crime of embezzlement and sentenced to a term of two and one-half years in the state penitentiary. Judgment affirmed.

Affirmed.

Bowen &amp Watson and S. C. Winters, for Appellant.

The demurrer to the information should have been sustained, as it does not state whether the money claimed to have been embezzled was the property of Bingham county or of E. C Shearer, or of whom, and does not in any manner comply with sections 7677, 7678 of the Revised Statutes.

The court should have sustained the objection of defendant to the appearance of Standrod & Terrell, as counsel for the state, as there is no law authorizing such appearance by private counsel in criminal actions, and it is against public policy. (Conger v. Board of County Commrs., 5 Idaho 347, 48 P. 1064.)

The requested instruction at folios 293, 294, should have been given as going to the intent, and in connection with the other requested instructions whether or not he was justifiable in his acts; otherwise it would make no difference as to the good faith of an act. (People v. Weslake, 124 Cal. 452, 57 P. 465.)

J. J. Guheen, Attorney General, Edwin Snow, R. M. McCracken, County Attorney, and Standrod & Terrell, for Respondent.

The information states the facts and circumstances which go to make up the offense defined by the statute. (Rev. Stats., 7065, 7066; Brady v. Territory, 7 Ariz. 12. 60 P. 698; People v. Cobler, 108 Cal. 538, 41 P. 401; People v. Jose De La Guerra, 31 Cal. 416; People v. Gray, 66 Cal. 271, 5 P. 240.)

Applications for the postponement of the trial of an action are addressed largely to the discretion of the trial court, and it is only in those cases where the discretion has been abused that the supreme court will review such action. (People v. Walter, 1 Idaho 386; State v. Gordon, 5 Idaho 297, 48 P. 1061; State v. Rice, 7 Idaho 762, 66 P. 87; State v. Rooke, 10 Idaho 388, 79 P. 82; State v. Wetter, 11 Idaho 433, 83 P. 341.)

The next point discussed by counsel for appellant, while it is not assigned as one of the numerous errors relied upon "in their order," is that the court permitted Standrod & Terrell, attorneys in the trial court, to assist in the prosecution of the case. The question of attorneys other than the prosecuting officer assisting in the prosecution has been well settled by this court. (State v. Crump, 5 Idaho 166, 47 P. 814; People v. Biles, 2 Idaho 114, 6 P. 120; State v. Williams, 4 Idaho 502, 42 P. 511; People v. Powell, 87 Cal. 348, 25 P. 481, 11 L. R. A. 75; Territory v. Catton (People v. Catton), 5 Utah 451, 16 P. 902; People v. Tidwell, 4 Utah 506, 12 P. 61.)

Proof of similar acts is proper proof of intent. (People v. Gray, 66 Cal. 271, 5 P. 240; 5 Ency. of Ev. 240.)

The law makes it the duty of the sheriff to collect liquor licenses. (Rev. Stats., sec. 2157; State v. McDonald, 4 Idaho. 468, 40 P. 312; Murfree on Official Bonds, sec. 193.) No demand by the successor of the appellant Steers is necessary, nor is such demand necessary to be made by the county. (Hollingsworth v. State, 111 Ind. 289, 12 N.E. 490; State v. Ring, 29 Minn. 78, 11 N.W. 233; State v. Czizek, 38 Minn. 192, 36 N.W. 457.) The mere failure of a public officer to turn over and account for public money is prima facie evidence of embezzlement. (Fleener v. State, 58 Ark. 98, 23 S.W. 1.)

Failure to account at the proper time is embezzlement. (5 Ency. of Ev. 144, notes.) Even if the moneys had been illegally collected by Steers, he having collected them under color of office, he should have paid them into the county treasury, and they did not belong to him in any view, and he had no right to retain them. (Perry v. Irrigation Dist., 127 Cal. 565, 60 P. 40-42; People v. Van Ness, 79 Cal. 84, 12 Am. St. Rep. 134, 21 P. 554.) A public officer cannot dispute the right of the county to the money collected in his official capacity. (Placer Co. v. Ashton, 8 Cal. 303; People v. Jenkins, 17 Cal. 500; McKee v. Monterey County, 51 Cal. 275.

STOCKSLAGER, C. J. Ailshie, J., and Sullivan, J., concur.

OPINION

STOCKSLAGER, C. J.

The prosecuting attorney of Bingham county charged appellant with the crime of embezzlement; the charging part of the information is as follows: The said Peter A. Steers, at and within Bingham county and state of Idaho and within three years prior to the filing of this information, being then and there an officer of Bingham county, state of Idaho charged by law with the receipt, safekeeping and transfer of public moneys, to wit: The sheriff in and for Bingham county, state of Idaho and by virtue of his said office, then and there a receiver of public moneys, to wit, a collector of licenses or license taxes, and authorized by law to receive said moneys, and then and there acting as such officer, did then and there willfully, unlawfully, fraudulently and feloniously, without authority of law, appropriate to a use and purpose not in the due and lawful execution of his trust, to wit, to his own use, certain money paid to and received by him while acting in his official capacity as said sheriff, to wit, the sum of $ 500, lawful money, the same being so paid to and received by him for said Bingham county, state of Idaho by and from E. C. Shearer on or about the twenty-third day of May, 1904, for a license to sell spirituous, vinous, malt and intoxicating liquors within Bingham county, state of Idaho. To this information a demurrer was filed, to wit: "1. The facts therein stated do not constitute a public offense. 2. Said information does not substantially conform to the legal requirements of sections 7677, 7678 and 7679 of the Revised Statutes of Idaho particularly in this, to wit: (a) Said information does not contain a statement of the acts constituting the offense attempted to be charged in such manner as to enable a person of common understanding to know what is intended. (b) It does not state either specifically or approximately the date of the commission of the alleged crime. (c) It is not direct or certain in stating the time of the commission of the offense or in stating whether or not said offense was committed while the defendant was sheriff of Bingham county, Idaho or in stating whether or not the $ 500 referred to therein ever belonged to or was the property of said Bingham county, or whether said $ 500 was at the time of its alleged misappropriation the property of the person named in said information as being the person who paid said money to the defendant. Nor is said information direct or certain in stating that the said five hundred dollars or any part thereof was ever in the possession of the defendant or under his control by virtue of any trust or of his official position as sheriff of said Bingham county. Nor is said information direct or certain in stating whether or not any license was ever issued or granted by said Bingham county to said person who is alleged to have paid said $ 500 to the defendant, or whether a license was refused or denied. 3. In the respects stated in subdivision c of the foregoing paragraph 2, said information does not clearly and distinctly set forth the act or omission charged as the offense."

In the minutes of the court of date April 19, 1905, it is shown that a motion to set aside the information was submitted to the court and overruled and on the same day the demurrer was overruled. On the twenty-fifth day of April, 1905, a motion for a continuance was denied. On the same day a motion for change of venue was submitted to the court and granted. On the fourth day of May, in Bannock county, a motion and affidavit for a continuance of the cause, also a motion to postpone the time of trial to a later date; both of these motions were overruled. On the same day a jury was impaneled, and on that and the succeeding day a trial was had which resulted in a verdict of guilty as charged in the information, and on the eleventh day of August, 1905, appellant was sentenced to serve a term of two and one-half years in the state penitentiary.

Counsel for appellant insists that the demurrer to the information should have...