Wood v. State

• Decision Date: 30 October 1886
• Citation: 1 S.W. 709,47 Ark. 488
• Parties: WOOD v. STATE
• Court: Arkansas Supreme Court

1 S.W. 709

47 Ark. 488

WOOD v. STATE

Supreme Court of Arkansas

October 30, 1886

APPEAL from Carroll Circuit Court, Hon. I. M. PITTMAN, Circuit Judge.

Judgment reversed and cause remanded.

O. W Watkins for Appellant.

The act of 1883 (Acts 1883, p. 56,) by implication repealed Gantt's Dig., sec. 1371. It contained new provisions, and covered the entire subject matter.

The indictment does not comply with the statute, and is fatally defective, leaving out the material words "who has taken the oath of office," etc.

Where it is a crime only under certain circumstances, the indictment must aver and set out the circumstances, else it will be insufficient. 1 Best. Cr. Pro., 1 ed., secs. 282 362, 366; Myers' Fed. Dec., vol. 12, sec. 1433; 53 N.Y 513; 67 Id., 19; 30 Ark. 497; 36 Id., 64.

Criminal statutes are strictly construed, and no case is to be brought by construction within the statute, unless it is completely within its words. 38 Ark. 521; 1 Best. Cr. Pro., 2 ed., secs. 612, 615, note 2; also 53 Ala. 481; 25 Am. Rep., 643; 3 Humph., 483; 39 Am. Rep., 189; 5 Denio, 76.

Dan W. Jones, Attorney General, for Appellee.

The indictment charged that he was "duly elected and acting." There is no good ground for the appellant's assumption that the taking of the oath is an aggravation of the offense; the statute, Sec. 1643, Mansf. Dig., does not state a punishment for an officer who takes no oath and then a greater punishment for one who has taken an oath. It is charged that he "was acting," and Sec. 4781, Mansf. Dig., requires each officer to take on oath before entering upon the duties of his office. In Tully v. People, 67 N.Y. 19, cited by appellant, it is held to be unnecessary to follow the precise words of the statute, if words of a more comprehensive meaning, covering those of the statute, be used.

But is it not a good common law indictment? It is said in 2 Bish. Crim. Law, sec. 320, that no reason is perceived why the original statute on embezzlement should not be common law in this country. One employed by a township as an accountant and treasurer was held for embezzlement. 2 Arch., 1346; R. v. Squire, R. & Ry., 849; 2 Bish. Cr. L., sec. 349.

It was only necessary to show a failure to settle. Mansf. Dig., sec. 1643.

OPINION

SMITH, J.

The indictment charged that the defendant, on the 10th day of September, 1883, being then and there the duly elected and acting county treasurer, in and for the said county of Carroll, and having then and there in his hands, as such county treasurer, a large amount of money, to-wit: $ 181.22, and of that value, the property of common school district No. 39, in said county, said money being then and there public funds, and being composed of national bank bills and United States treasury notes, of the money of the United States of America, commonly called greenbacks, but a more particular description whereof is to the grand jurors unknown, and while he, the said Henry Wood, was acting as such county treasurer as aforesaid, having such money in his hands by virtue of his said office, he, the said Henry Wood, did then and there feloniously, wilfully, and with felonious intent to cheat and defraud said school district and the citizens thereof, feloniously convert the same to his own use and benefit, and thereby swindle and defraud the said school district of their lawful funds, etc.

A demurrer and a motion in arrest of judgment were over-ruled; and the defendant was sentenced to a term of five years in the penitentiary.

act of July 9, 1868, entitled "An act to define and punish embezzlement of any officer of the state employed in the collection of the public revenue;" provided, "That every officer of the state, city, county or township, who is, or has been, employed in the collection of the public revenue, or who has any public funds in his hands, and who has converted to his own use, or otherwise misapplied, any part of the money or funds collected by him, or which may have come to his possession by virtue of his employment, and every such officer who shall fail, or omit, to pay the amount found due from him upon settlement directed in this act by the judges of the county court, shall, on conviction, be fined not less than $ 500, and be imprisoned in the penitentiary not less than one year nor more than five." Gantt's Dig., sec. 1371.

On the 20th of February, 1883, another act was passed for the better protection of the public revenues, which reads as follows "That every officer of the state, county, city, incorporated town, or township, who has taken an oath of office, as required by law, employed in the collection of the public revenue, or who may have any public funds in his hands, who shall convert the same to his own use, or use it in any way for his private purposes, or shall loan, or permit any other person to use or otherwise misapply, any part of the money or funds so collected by him, or which may have come into his possession by virtue of his employment, and every such officer who shall fail or omit to pay the amount found due by him upon settlement, shall be deemed...