State v. Taylor
| Citation | 64 N.W. 548,7 S.D. 533 |
| Parties | STATE OF SOUTH DAKOTA, Defendant in error, v. WILLIAM WALTER TAYLOR, Plaintiff in error. |
| Decision Date | 12 October 1895 |
| Court | South Dakota Supreme Court |
Modified
Horner & Stewart
Attorneys for plaintiff in error.
Coe I. Crawford, Attorney General
John A. Holmes, State’s Attorney
Attorneys for defendant in error.
Opinion filed Oct. 12, 1895
From the record before us it appears that on the 13th day of August, 1895, plaintiff in error was arraigned in circuit court upon an indictment returned by the grand jury of Hughes county on the 17th day of May immediately preceding, and at a regularly adjourned term of said court. Omitting formal allegations, the indictment is as follows:
“That William Walter Taylor, late of said county, yeoman, on the 8th day of January, in the year of our Lord one thousand eight hundred and ninety five, at the county of Hughes and state of South Dakota, did commit the crime of embezzlement, for that on said day the said William Walter Taylor had in his custody and possession the cash sum of three hundred and sixty-seven thousand and twenty-three dollars and eighty-four cents, lawful money of the United States, and of the cash value of three hundred and sixty-seven thousand and twenty-three dollars and eighty-four cents, which said money was then and there the property of the state of South Dakota, and had theretofore been collected by and received by the said William Walter Taylor
[7 SD 588]
as the duly elected, qualified, and acting treasurer of said state, and in virtue of his official capacity as such treasurer for and in behalf of said state of South Dakota, as public funds and revenues belonging thereto. That at the time of collecting and receiving the said money for and in behalf of said state of South Dakota, as aforesaid, the said William Walter Taylor was in truth and fact the duly elected, qualified, and acting treasurer of said state. That on said day the duly elected, qualified, and acting successor of the said William Walter Taylor, one Kirk G. Phillips, who became in truth and fact the duly elected, qualified, and acting treasurer of the state of South Dakota on the said 8th day of January, 1895, demanded of the said William Walter Taylor that he pay over the aforesaid money to him, the said Kirk G. Phillips, his duly elected, qualified, and acting successor, as aforesaid, which the said William Walter Taylor then and there wrongfully and feloniously neglected and still neglects to do. And that, at the time and place aforesaid, the said William Walter Taylor did unlawfully and feloniously, with intent to deprive the owner thereof, fraudulently appropriate and convert the aforesaid sum of three hundred and sixty-seven thousand and twenty-three dollars and eighty-four cents, the property of the state of South Dakota, as aforesaid, and of the value aforesaid, to his own use, against the peace and dignity of the state of South Dakota.”
The court overruled a demurrer to this indictment interposed by the accused, in which the grounds relied upon in this court are specified as follows: “(1) … (2) That more than one offense is charged in said indictment; (3) That the facts stated do not constitute a public offense.” Upon a plea of guilty as charged in the indictment, the accused was sentenced to a term of five years in the penitentiary, and this judgment of conviction and the ruling of the court upon the demurrer are here presented by a writ of error for our examination and review.
As everything required to bring the crime charged within the statute by which the offense is created must be averred in the indictment, a studious and careful examination of certain sections of the Complled Laws, to which our attention is directed by the argument and briefs of counsel, will be essential to a proper consideration of the indictment as to its sufficiency, as well as to a determination of other important questions to which the assignments of error relate. “Embezzlement is the fraudulent appropriation of property by a person to whom it has been entrusted.” Comp. Laws, § 6796. Omitting, for the sake of brevity, portions having no application to this case, section 1665 is as follows:
“If any county treasurer or other officer or person charged with the collection, receipt, safe-keeping, transfer or disbursement of the public money or any part thereof, belonging to the state or any county, precinct, district, city, town or school district in this state, shall convert to his own use, … every such act shall be deemed and held in law to be an embezzlement of so much of said money or other property, as aforesaid, as shall be thus converted,” etc.
The section further provides that upon conviction such officer shall be sentenced to imprisonment in the penitentiary for a term of not more than twenty-one years nor less than one year, according to the magnitude of the embezzlement, and also to pay a fine equal to double the amount of money or other property so embezzled. It will be noticed that the provision mentions no property other than money which might be embezzled in any event, and that the section entirely fails to specify, state, or enumerate what or whose property, money, or thing is intended to be made the subject of embezzlement. By thus omitting this essential constituent and substantive element, the attempt of the legislature to enact a law by which an officer of his state to whom has been committed the custody of public moneys and property may be punished for the embezzlement thereof, according to the magnitude of the offense, comes to naught, and is effectual for no purpose. To further exemplify, we take from section 5712 of the Consolidated Statutes of Nebraska, of which our enactment appears to be a defective copy, and insert in the space indicated by stars in the above quotation, from section 1665, the following, which is omitted therefrom: “Any portion of the public money, or any other funds, property, bonds, securities, assets, or effects of any kind, received, controlled or held by him for safe-keeping, transfer or disbursement, or in any other way or manner, or for any other purpose.” A cursory reading of our statute, without any attempt at a close analysis, exhibits at once the important fact that the very subject of the embezzlement is, perchance through oversight or inadvertance, entirely and conspicuously omitted; thus leaving absolutely nothing for the act named “embezzlement” to operate upon. Manifestly, then, section 1665 is in form but a skeleton, in substance inanimate, and obscurely sepulchered in the Political Code, apart from its kindred.
Embezzlement being a crime wholly created by statute, the facts stated in the indictment, considered in the light of the statutory provisions and definitions, rather than by what the pleader has informally chosen to characterize the “offense,” must dominate in determining the sufficiency of the allegations therein contained to state a public offense. From a careful examination of all our statutory enactments relating to the subject being considered, the writer is unable to conceive a case of embezzlement that could not be brought directly within some ample statutory provision had section 1665, like the Nebraska law, been rendered operative and effectual.
The remaining sections of the Compiled Laws upon which counsel for the state measurably rely to sustain the indictment and conviction thereunder are as follows: Section 6797:
“If any person, being an officer, director, trustee, clerk, servant or agent of any association, society or corporation, public or private, fraudulently appropriates to any use or purpose not in the due and lawful execution of his trust, any property which he has in his possession or under his control in virtue of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, he is guilty of embezzlement.” Section 6799:
“If any person being a trustee, banker, merchant. broker, attorney, agent, assignee in trust, executor, administrator or collector, or being otherwise intrusted with or having in his control property for the use of any other person, or for any public or benevolent purpose, fraudulently appropriates it to any use or purpose not in the due and lawful execution of his trust, or secretes it with fraudulent intent to appropriate it to such use or purpose, he is guilty of embezzlement.”
“Every person guilty of embezzlement is punishable in the manner prescribed for feloniously stealing property of the value of that embezzled. … which is, in case the property is taken from the person of another or exceeds $20 in value, by imprisonment in the penitentiary not exceeding five years.”
As the capacity in which the property was received or came into the possession or under the control of one who has embezzled the same becomes vitally important in fixing his status or relation to the offense under the statute, and must be distinctly averred and proved, we are called upon to determine whether a state treasurer who has appropriated to his own use money belonging to the state may be brought within the purview of either provision of any of the above-quoted sections of the statute. The property which Section 6797 makes the subject of embezzlement is that of an “association, society or corporation, public or private,” and the person by whom the offense may be committed must be either an officer, director, trustee, clerk, servant or agent” thereof. In its ordinary acceptation, and as used in statutes, the word “association” means “a body of persons invested with some, yet not full, corporate rights and powers; as, a joint-stock association, a building and loan association.” And. Law Dict. 85. “A society is a number of persons united together by mutual consent, in order to deliberate, determine and act jointly for some common purpose.” 2 Bony. Law Dict....
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