Stropes v. State
| Decision Date | 02 November 1889 |
| Citation | 120 Ind. 562,22 N.E. 773 |
| Parties | Stropes v. State. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Greene county; John T. Beasley, Special Judge.
Moffett & Davis, S. W. Axtell, and Cavins & Cavins, for appellant. L. T. Michener, Atty. Gen., for the State.
An act approved March 5, 1883, (Elliott's Supp. § 340,) provides that it shall be the duty of each clerk, sheriff, and treasurer of the several counties in this state, and every other officer receiving money in his official capacity, at the expiration of his term of office, to pay over to his successor in office all moneys of every description, to whomsoever due, remaining in his hands at the expiration of such term, taking the receipt of such successor therefor; and any clerk, sheriff, or treasurer so failing to pay over such moneys, or any successor or clerk, sheriff, or treasurer who shall fail to pay over any moneys to the parties entitled to received the same, when called on so to do, shall be deemed guilty of embezzlement, and on conviction thereof shall be fined in any sum not exceeding $1,000, and be imprisoned at hard labor in the state-prison not less than one nor more than five years. Under the provisions of this statute, at the February term, 1889, of the Greene county circuit court, the grand jury of said county returned the following indictment against appellant, viz.: “The grand jury of the county of Greene, in the state of Indiana, being duly impaneled, sworn, and charged, upon their oaths present, that at said county of Greene, on the 4th day of November, 1884, one Edwin R. Stropes was then and there duly elected to the office of treasurer of Greene county, in the state of Indiana, for the term of two years, ending on the 7th day of September, 1887; that the said Edwin R. Stropes was thereupon duly commissioned, and afterwards, on the 7th day of September, 1885, gave bond, and on the 8th day of September, 1885, duly qualified and entered upon the duties of said office, and served as such treasurer until the 8th day of September, 1887; that on the 2d day of November, 1886, one James E. Bull was duly elected to the office of treasurer of said Greene county, in the state of Indiana, for the term and period of two years from said 7th day of September, 1887, and was afterwards duly commissioned and gave bond, and on the 8th day of September, 1887, duly qualified, and then and there entered upon the discharge of the duties of his said office, as the successor of said Edwin R. Stropes, the then incumbent; that at the time of the surrender of said office to the said James E. Bull, to-wit, on the 8th day of September, 1887, the said Edwin R. Stropes had in his hands, as such treasurer of Greene county, in the state of Indiana, the sum of fourteen thousand four hundred and fifty-nine dollars and forty-three cents, ($14,459.43,) which moneys had come into his hands by virtue of his said office, and which sum was then and there due from the said Edwin R. Stropes as treasurer, as aforesaid, to his successor in office, the said James E. Bull, as treasurer of Greene county, Indiana, as aforesaid; that immediately after the said James E. Bull had entered upon the discharge of his duties as such treasurer of Greene county, in the state of Indiana, he demanded of the said Edwin R. Stropes the said fourteen thousand four hundred and fifty-nine dollars and forty-three cents, ($14,459.43,) and demanded of him to pay over or account for all moneys which had come into his hands by virtue of the said office; that the said Edwin R. Stropes failed and refused, and has ever since failed, to pay over or account for the said fourteen thousand four hundred and fifty-nine dollars and forty-three cents, ($14,459.43,) or any part of it, contrary,” etc. The court overruled a motion to quash the above indictment, and the appellant excepted, and thereupon entered a plea of not guilty. A trial of the cause by a jury resulted in a verdict finding the appellant guilty as charged, and fixing his punishment. Over a motion for a new trial, judgment was rendered on the verdict, from which he appeals to this court.
The first supposed error relied upon by the appellant for the reversal of the judgment against him is that the court erred in overruling his motion to quash the indictment. It is earnestly contended by counsel for the appellant that the indictment before us is defective, in that it fails to aver that the acts therein charged were done either unlawfully, fraudulently, or feloniously. On the other hand, it is contended by counsel for the state that the indictment falls within the general rule that it is sufficient, in charging a purely statutory crime, to follow the language of the statute creating such crime. As to whether it is sufficient in a case under the statute, for the violation of which the appellant stands charged, to charge the defendant in the language of the statute alone, depends upon the construction to be placed upon that statute. If an outgoing clerk, sheriff, or treasurer is to be deemed guilty of a felony for failing to pay over to his successor in office the money remaining in his hands, without regard to the surrounding circumstances or particular facts in the case, then it must follow that a charge against him in the language of the statute is sufficient; for it is undoubtedly the general rule that, where a crime is created by statute defining the offense created, it is sufficient in an indictment to charge the offense in the language of the statute. State v. Bougher, 3 Blackf. 307; Pelts v. State, ...
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