The State v. Howell
Decision Date | 03 June 1927 |
Docket Number | 27831 |
Citation | 296 S.W. 370,317 Mo. 330 |
Parties | The State v. D. C. Howell, Appellant |
Court | Missouri Supreme Court |
Appeal from Reynolds Circuit Court; Hon. E. M. Dearing Judge.
Affirmed.
John H Raney and Garry H. Yount for appellant.
(1) The information filed does not charge the appellant with corruption in office. The information must specifically bring the defendant within all the material words of the statute. It is an inflexible rule in criminal pleading that in all indictments nothing can be left to intendment or implication. The defendant will not be required to go beyond the pleading to learn the nature of the charge or the issue which he must meet. Mo. Constitution, Art. 2, sec. 22; State v Murphy, 164 Mo.App. 204; State v. Keating, 202 Mo. 197; State v. Evans, 128 Mo. 406; State v. Wade, 267 Mo. 249; State v. Helderle, 203 Mo. 574; State v. Austin, 113 Mo. 538; State v. Gabriel, 88 Mo. 631; State v. Barnes, 220 S.W. 848. (2) Sec. 3737, R. S. 1919. provides that indictments and informations for felonies are required in three and five years. Indictments or informations for corruption in office must be filed within five years. The trial court in holding that this defendant, who was charged under Section 3334, could be convicted for alleged acts of embezzlements committed more than three and within five years from the date of the filing of the information, deprived appellant of his rights as guaranteed to him by Section 1 of the Fourteenth Amendment of the Constitution of the United States. State ex rel. v. Railway Co., 246 Mo. 512; Railway Co. v. Ellis, 165 U.S. 150; Billings v. Illinois, 188 U.S. 97; Lige v. Railroad Co., 275 Mo. 249; Fiske v. People, 188 Ill. 206; Van Harlinen v. Doyle, 134 Cal. 53; Barbier v. Connolly, 113 U.S. 27; Hayes v. Missouri, 120 U.S. 68; Yick v. Hopkins, 118 U.S. 356; Truax v. Corrigan, 257 U.S. 312; Cooley, Constitutional Limitations (4 Ed.) p. 491. (3) To permit the examiner, Henry M. Smith, to testify as to the funds received by appellant, more than three and within five years from the date of the filing of the information, denied this defendant equal protection of the law with others that might be charged under Sec. 3334, R. S. 1919, viz., mortgagees, trustees, executors, administrators, etc. Authorities cited last above. (4) The testimony of County Clerk Welch would have been competent. Such testimony would have shown errors in the audit of Henry M. Smith, and if it had reduced the amount to below thirty dollars, it would have shown to the jury that Smith was not an expert and would have discredited his testimony.
North T. Gentry, Attorney-General, and Smith B. Atwood, Assistant Attorney-General, for respondent.
(1) The information properly charges every element of the offense, and is sufficient. Sec. 3334, R. S. 1919; State v. Ross, 279 S.W. 405; State v. Noland, 111 Mo. 485; State v. Manley, 107 Mo. 366; State v. Findley, 101 Mo. 220; State v. Hays, 78 Mo. 602; State v. Flint, 62 Mo. 396; State v. Clarkson, 59 Mo. 150. (2) "Corruption in office" is a generic term, comprehending all acts the indulgence in which by public officers is made unlawful; but in itself is not made a crime separate and distinct from such specific unlawful acts. It includes embezzlements by public officers, and the limitation is five years. State v. Douglass, 239 Mo. 674; State v. Ragsdale, 59 Mo.App. 603; 14a C. J. 1431. (3) The court properly permitted testimony of the general results of the audit by the witness who made the same. State v. Findley, 101 Mo. 223. (4) It was not error to reject the testimony of the county clerk to show discrepancies in the records of the Circuit Clerk and County Treasurer, because: (a) It does not appear that he knew of any such discrepancy. (b) Witness was not qualified as one having any special knowledge of such records. (c) Witness did not ex-officio have knowledge of any records other than his own. (d) If witness had any special knowledge of such records, offer of proof should have been so specifically directed. (e) The offer made at the trial was too vague, remote and general in its terms to impart notice to the court that witness could testify to any material matter included in the general offer. (f) It is not error to reject witness to testify generally that another witness is mistaken, as that is a question for the jury. State v. Osborn, 240 S.W. 820; State v. Linders, 299 Mo. 671; State v. Merrell, 263 S.W. 122; State v. Roberts, 280 Mo. 678; Kirkwood v. Cronin, 259 Mo. 214; State v. Perry, 267 S.W. 828. (5) The verdict was in proper form. State v. McBride, 231 S.W. 592; State v. Bacey, 267 S.W. 809.
The defendant was convicted and sentenced in the Circuit Court of Reynolds County, under Section 3334, Revised Statutes 1919, on a charge of embezzlement as an officer, November 25, 1925, and appealed.
In November, 1918, the defendant was elected Circuit Clerk and ex-officio Recorder of Deeds of Reynolds County, and assumed the duties of his office January 1, 1919. In the autumn of 1923, the State Auditor ordered an examination of the books and records of the appellant's office for the years 1919 to 1922. Henry M. Smith, examiner of county records, for the office of the State Auditor, made the examination. He testified that the defendant's books and records as circuit clerk showed the defendant had collected $ 2001.76, and had paid into the county treasury $ 1015.55, leaving a balance of $ 986.21 unaccounted for. The examiner explained in detail what he found, not only in defendant's books, but in the fee books and other books which he examined in the office of the sheriff and county treasurer.
Defendant denied that he received all the money which the examiner testified was shown by the books, and claimed he accounted for all he received.
I. Appellant challenges the constitutionality of the statute under which he was charged (Sec. 3334, R. S. 1919), as affected by the Statute of Limitations (Sec. 3737, R. S. 1919).
Section 3334 provides that if any officer appointed or elected by virtue of the Constitution of this State, or any mortgagee, trustee, executor, etc., shall convert to his own use in any manner, or make away with or secrete any moneys that may come to him by virtue of his office, or by virtue of the trust reposed in him, he shall, upon conviction, be punished "in the manner prescribed for stealing property of the kind or the value of the article so embezzled," etc.
Section 3737, a general Statute of Limitations, provides that no person shall be tried, prosecuted or punished for any felony (other than specified in a previous section), unless the indictment be found or information be filed within three years after the commission of the offense, "except indictments or informations for bribery or for corruption in office may be prosecuted if found within five years after the commission of the offense."
Appellant objects to Section 3334, because it includes in its terms embezzlement by an officer, as well as embezzlement by an administrator or other technical trustee; having classed them together they are offenses of the same grade and character, and must be dealt with in exactly the same way.
It is entirely proper for the Legislature to prescribe different punishments for different kinds of offenses, and we know of no authority or principle which would prevent the Legislature from including in the same statute different offenses of the same general character. No different punishments are provided in the section, because all offenders against whom the section is directed are punished the same as persons guilty of larceny. The range of punishment may vary with the gravity of the offense in each individual case.
Appellant's principal argument is directed at Section 3737. He contends that "corruption in office" is a specific term, and does not apply to the offense of embezzlement charged here; that the expression "for bribery or for corruption in office" in Section 3737 means that corruption in office is the alternative for bribery; that the terms are used to mean the same thing. The answer to that objection was settled in the case of State v. Douglass, 239 Mo. 674, l.c. 679, where this court, quoting definitions of corruption in office, held that it included bribery as one form of corruption, and that embezzlement by an official came within the expression "corruption in office," a generic term.
It is further argued that if the offense charged is "corruption in office," the discrimination in Section 3737 denies equal protection of the laws in violation of the Fourteenth Amendment to the Federal Constitution because it prescribes...
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