State v. Wolfe

• Decision Date: 14 March 1933
• Docket Number: 7218
• Parties: STATE OF SOUTH DAKOTA, Respondent, v. GEORGE H. WOLFE, Appellant.
• Court: South Dakota Supreme Court

61 S.D. 195

247 N.W. 407

STATE OF SOUTH DAKOTA, Respondent,

v.

GEORGE H. WOLFE, Appellant. South Dakota Supreme Court Appeal from Circuit Court, Lawrence County, SD Hon. H.R. Hanley, Judge #7218—Reversed H.F. Fellows, Rapid City, SD John T. Heffron, Deadwood, SD Attorneys for Appellant. M.Q. Sharpe, Attorney General Benj. D. Mintener, Assistant Attorney General, Pierre, SD Francis J. Parker, Deadwood, SD Attorneys for the State. Opinion Filed Mar 14, 1933

BECK, Circuit Judge.

On June 2, 1930, an information was filed in the circuit court of Lawrence County, containing twelve counts, and charging the defendant with embezzlement of public funds while acting as county treasurer and deputy county treasurer of said county; and also with the failure to account for and pay over, upon demand, to the county treasurer of said county public funds in his hands as a public officer. The trial court sustained a demurrer to all of the counts contained in the information, except counts I and II; and it is with these counts alone that we are concerned in this case. Upon a plea of not guilty, the defendant was convicted upon both counts, and judgment was entered accordingly. The case is before us upon an appeal from the judgment and an order denying a new trial. Numerous errors have been assigned, and the same will be hereinafter discussed.

By demurrer, and by proper and timely objections, the defendant challenged the sufficiency of both counts remaining in the information. The language of count I so far as here material is as follows:

“That the said George H. Wolfe of the County of Lawrence, State of South Dakota, on or about the 8th day of January, 1927, in the County aforesaid, then and there being, did then and there, at a time when said George H. Wolfe was the duly elected, qualified and acting Treasurer of Lawrence County, South Dakota, and at a time when the said George H. Wolfe, was the duly appointed, qualified and acting Deputy County Treasurer of said County and State, then and there a department of the Government of said Lawrence County and the State of South Dakota and an office created by the laws of said State and County, did at said time and place, wilfully, fraudulently, unlawfully and feloniously appropriate and convert to his own use the sum of Two Thousand and Eight Hundred Ninety-nine and 12/100 ($2,899.12) Dollars, lawful money of the United States, of the value of Two Thousand Eight Hundred Ninety-nine and 12/100 ($2,899.12) Dollars, which said money was then and there the property of said County and State and political subdivisions thereof, and, which said sum of money had, prior to said date and between the 7th day of January 1919, and said 8th day of January 1927, both dates inclusive, been collected and received by said George H. Wolfe, as such County Treasurer and Deputy County Treasurer as aforesaid, for and on behalf of said County and State, and political subdivisions thereof.”

This count was drawn under the provisions of subdivision 1 of section 3814, Rev. Code 1919. We are satisfied that it contains all the elements of embezzlement as applied to public funds. An information charging embezzlement of public funds in substantially the same language was approved by this court in State v. Ewert, 219 N.W. 817.

To fully set forth count II herein would serve no useful purpose and unduly extend the length of this opinion. This count is divided into six separate paragraphs, and the following facts are alleged: (a) The defendant was treasurer and deputy treasurer of Lawrence County from January 7, 1919, to January 8, 1927, both dates inclusive; and as such officer received the sum of $2,899.12; (b) that the State of South Dakota and the people of said state were directly and indirectly interested in said money; (c) that James M. Campbell, at the time of the filing of the information and during the year 1929, was the treasurer of Lawrence County; (d) that on the 6th day of December, 1929, the said James M. Campbell, on behalf of said county and state, made a written request and demand upon the defendant to pay said money to the said Campbell as county treasurer; (e) that on the 6th day of December, 1929, there was a duty imposed upon the defendant by law to pay the said money to Campbell as county treasurer; (f) that the said defendant wilfully, unlawfully, and feloniously omitted and refused to pay over said money to the said Campbell as such county treasurer.

Whether count II states any public offense known to the law of this state is a matter we need not decide, for reasons which will hereinafter appear; certain it is that it does not charge embezzlement, because the element of willful and fraudulent conversion or diversion of the funds in question is not alleged.

By a motion to quash, by special plea, and by proper and timely objections made at various stages of the trial, the defendant invoked the statute of limitations, and asserted that, no information having been filed in the circuit court within three years after the commission of the offenses alleged, the prosecution was barred by the provisions of section 4523, Rev. Code 1919. The learned trial court denied the motion to quash, and overruled the special plea and the said objections; and such rulings have been presented for review by proper assignments of error.

The trial court required the state to furnish a bill of particulars, in which numerous transactions involving alleged irregularities and shortages in the office of the county treasurer of Lawrence County were set forth. These transactions covered a period from January 7, 1919, to January 8, 1927. However, the trial court removed from the consideration of the jury all of such transactions except one, which for the sake of brevity will be termed the Conard transaction. The offense grounded upon the Conard transaction is alleged to have been committed on or about January 8, 1927; the evidence discloses that, if committed, such offense was committed not earlier than March 7, 1925.

By chapter 91 of the 1927 Session Laws, the Legislature of this state amended section 4523, Rev. Code 1919, so as to extend the time within which a prosecution for embezzlement of public moneys might be commenced to ten years. The amendment became effective as the law of this state on July 1, 1927, and before the three-year period had run against the Conard transaction. If the amendment had the effect of extending the time within which an embezzlement charge might be brought against the defendant to ten years, then count I is not barred by the statute of limitations.

The general rule is stated in 16 CJ 222, as follows:

“A statute extending the time for the prosecution of certain crimes, although it may not affect cases in which the period of limitation has expired, extends those limitations which have not expired at the date of its passage.”

This rule is supported by ample authority. 17 RCL 704; Commonwealth v. Duffy, 96 Pa. 506, 42 Am.Rep. 554; People v. Buckner, 281 Ill. 340, 3 ALR 1323. We conclude that count I, being an embezzlement charge, was not barred by the statute of limitations.

From the bill of particulars furnished by the state, it appears that the most recent transaction therein mentioned is the Conard transaction; this was completed on March 7, 1925, and, if the defendant ever obtained possession of any public money under the Conard transaction, he received such money not later than March 7, 1925. Inasmuch as the offense sought to be charged under count II is not embezzlement, the state’s position is not aided by the provisions of chapter 91 of the 1927 Session Laws of South Dakota, amending section 4523, Rev. Code 1919. More than three years having elapsed after the completion of the Conard transaction and before any demand was made upon the defendant to pay over any money, and more than three years having elapsed after defendant’s term of office expired, January 1, 1927, before any information was filed in the circuit court, we conclude that count II was barred by the provisions of section 4523, Rev. Code 1919. The trial court erred in...