Hemingway v. State

68 Miss. 371

• Court: Mississippi Supreme Court
• Decided: October 15, 1890
• Status: Published

Opinion

Woods, C. J.,

delivered the opinion of the court.

1. The action of the trial court in refusing the defendant’s application for a continuance is presented for our consideration in the first assignment of error.

The application for continuance is addressed to the sound discretion of the court to which it is presented, and the action of the court on such application is not to be disturbed by the appellate tribunal, unless it is apparent that there has been a palpable abuse of that discretion. The application in this case rested upon the affidavit of the defendant, supported by the affidavit of Leroy Douglass, and states, in substance, that he, the defendant, was surprised on turning over the money in his hands, as state treasurer, to his successor, to find that there was a large shortage; that he believed up to that time that the balance shown to be due by him by his account and report was in the state treasury; that he believed, up to that time, that the books in the treasurer’s office had been kept correctly, and that the books of the office had been entrusted to a competent and careful bookkeper, and would show the true state of his accounts; that as soon as practicable after this shortage was shown, he had had an experienced and competent accountant engaged in an investigation of tbe books and accounts to discover tbe errors therein, and the cause thereof; that he believes said shortage does not really exist, but has grown out of the. unbusiness-like method and the improper manner in which said books and accounts have been kept, and that said errors will be made apparent when his employed accountant shall have had time to go over said books and restate all the accounts in a business-like manner; that the accountant has diligently pursued his investigations, in order to be ready to state affiant’s accounts, but has found,, it impossible to make a report and statement up to that time; that the accountant has discovered palpable errors amounting to about f>40,000, and that said accountant is engaged in procuring all necessary information to make up an accurate statement of affiant’s account, and that he, said accountant, can only determine the true state thereof after his labors shall be fairly concluded; and that affiant expects to be in readiness to meet the charges against him and demonstrate his innocence at the next tenn of the court.

We are not prepared to say that there was such an abuse of judicial discretion in denying the application, based upon this showing, as to justify our interposition. It was not an application for time to produce evidence then known and shown to be in existence, but the manifest purpose of. it was to enter upon a search for testimony which it was only believed would be discovered. The desired and missing evidence might be found, or it might not. Was the court to strike a balance in a calculation of possibilities as to such discovery, and regulate its criminal proceedings by'any such application of the rule of chances ?

But, in reviewing this action of the court below, we are in such position to see .and judge as was then impossible. The learned judge in the trial court was constrained to hear and determine, in the first instance, without the tremendous advantage of the light that streams from the facts developed on trial. On motion for new trial, the court below occupied quite a different position than that in which it stood when first passing upon the application for continuance. It was enabled to see, in the strong light of the developed facts of the trial, the strength or weakness of the application denied before tbe trial was bad; and, occupying this vantage ground of examining the question of the rightfulness of the former refusal of the continuance, in the light of all _the evidence, the court, by overruling the motion for a new trial, affirmed the correctness of its original ruling.

• It is our privilege to stand at the end of the trial' likewise, and so standing and looking backward to the beginning, through the voluminous evidence in a finished case, we are constrained to concur in the judgment overruling the motion for the continuance. The expectations cherished by the defendant, in view of Douglas’ reported discovery of great and palpable errors in the books and accounts, were shown to be utterly vain, precisely as Douglas’ errors were demonstrated before the court and jury to be fanciful and unreal errors. It is clear to us that the defendant was deprived of no substantial right in the denial of his application for continuance ; that no possible harm resulted to him, and, hence, that there was no error in this particular.

2. It is contended with great strength and earnestness, by counsel for the defendant, that the action of the court in overruling the defendant’s motion in arrest of judgment was manifest error. The consideration of this proposition involves an examination and construction of our statutes on the subject of embezzlement, and the attentive scrutiny of the several counts in the indictment.

The first count charges the defendant with the wilful, fraudulent and felonious conversion to his own use, and the embezzling of large sums of moneys of the state which had been intrusted to him and had come into his hands as treasurer for safe-keeping and disbursement in pursuance of his duty as such treasurer, amounting in the aggregate to $315,612.19.

The second count charges that the defendant at divers times between January, 1876, and January, 1890, received as treasurer $15,515,994.11 of moneys of the state, and that on divers days, between the dates before mentioned, did wilfully, fraudulently and feloniously embezzle and convert to his own use a portion of said sum of moneys intrusted to him and received into his hands as such treasurer, amounting to $315,612, 19.

The third count charges that the defendant, at divers times between January, 1876, and January, 1890, received and had, as treasurer, of moneys of the state $15,515,994.11; that J. J. Evans was duly elected treasurer in November, 1889, to succeed the defendant in that office, for the term beginning January 6, 1890, and that said Evans qualified and entered upon the duties of said office on said last-named day, as the successor of defendant; that defendant’s term of office expired on January 5,1890, and that it then and there became defendant’s duty under the law to deliver and pay over to his successor all of said sum of $15,515,994.11, of moneys of the state which he had received as such treasurer, and which was then remaining in his hands, and that, on said January 6, 1890, as part of said last-named sum, there was remaining in his hands the sum of $1,068,523.04, of the moneys of the state so received by defendant as such treasurer; but that defendant, on said January 6, 1890, disregarding his duty to pay over and deliver said sum of $1,068,523.04 to his successor in office, did wil-fully and fraudulently and feloniously defraud the state of the sum of $315,612.19, by wilfully and feloniously omitting to comply with his duty to deliver and pay over, on the expiration of his term of office as such treasurer, to his successor in office, a portion of said sum of $15,575,994.11 of said moneys of the state, which he had received as such treasurer, and which remained in his hands on said January 6, 1890, amounting to $315,612.19.

It will thus be seen that the first and second counts charge, in ordinary language and in the common form, the crime of embezzlement, and that the 3d count charges embezzlement in defrauding the state by wilfully and fraudulently omitting to pay over to his successor, as lys duty required. With this examination of the several counts in the indictment, we see clearly what was charged in and by each.

Let us turn now and consider the several sections of the statute defining and punishing embezzlement.

Section 2787 of the code provides, in effect, that if any officer in this state, or any executor, administrator or guardian, or any trustee of an express trust, or any master or commissioner or receiver, or any attorney-at-]aw or solicitor, or any banker or collecting agent, or other person engaged in like public employment, or any other person undertaking to act for others, and intrusted by them with business of any kind or with money, “ shall wnlawfully convert to his own use any money or other valuable thing which comes to his hands or possession, by virtue of his office, or employment, and shall not, when lawfully required to pay over such money or deliver such thing, immediately do so, according to his legal obligation, he shall, on conviction, be imprisoned in the penitentiary not more than five years, or be fined not more than one thousand dollars, or imprisoned in the county jail not more than one year, or by both such fine and imprisonment.”

This section first appears in our laws in the code of 1880, and is the creation of an offense, prior to the adoption of that code, unknown to our jurisprudence. It is at once a collection law and a penal statute. Its terms show unmistakably that it was designed to prevent tmlawful (not fraudulent and felonious) conversions by officers, trustees, agents, attorneys, bankers and others, and to coerce the paying over immediately, when required to do so, according to the legal obligation of the offender. It was intended to punish the unlawful (not fraudulent and felonious) conversion and the not paying over immediately when required to do so. There must be both an unlawful conversion and, joined or added thereto, a failure immediately to pay over the thing converted when required. Where there has been an unlawful conversion, under this section, and an immediate restoration when required, the offense does not exist. It is a conversion without wilful and felonious intent which is created an offense — a merely unlawful conversion and a refusal or failure to restore, which this section defines and punishes.

That neither of the three counts of the indictment was drawn upon this section is apparent at a glance, for they all charge a wilful, fraudulent and felonious conversion simply. The section does not support either count, nor do any of them appear to have any relation to it. It is plain that they were not in the mind of the pleader who framed the indictment. Neither count charges the offense created by tbis section, and it is a vain and idle effort to attempt to connect them in any way.

Section 2788 makes it an offense for any officer in tbis state to fail to turn over, on demand, to bis successor in office money, books, records, etc., which may be in bis bands and which by law be is required to deliver to bis successor. But it is useless to dwell on tbis section, for it is conceded on all sides that the indictment was not drawn under it.

Section 2789 requires all officers to keep in their offices an accurate entry of each sum of public money, securities, stocks, or other public property, and then declares that if any officer “ shall wilfully make any false entry therein, or shall make any certificate or in-dorsement on any warrant on the treasury, that the same is genuine, when the same is in fact not a genuine warrant, or shall loan any portion of the public moneys, securities, stocks, or other public property, intrusted' to him, for any purpose whatever; or shall, by any wilful act or omission of duty whatever, defraud, or attempt to defraud the state, or any county, city, town or village, of any money, security, or property, he shall, on conviction thereof, be adjudged guilty of embezzlement, and fined not less than the amount or value of the money, security, stock, or other property so embezzled, or imprisoned in the penitentiary not more than five years, or in a county jail not more than one year, in the discretion of the court, or by both such fine and imprisonment.”

This section provides for the punishment of three specific offenses, viz: (1) The wilful making of false entries by officers ■ (2) The making of any false certificate or indorsement on a spurious warrant that the same is genuine; (3) The loaning of any public money, etc., intrusted to the officer, for any purpose whatever; and it is then declared further that any wilful act or omission of duty by which the state, county, city, or town is defrauded, or attempted to be defrauded, of any money, etc., shall be embezzlement.

The purpose of the section is plain and not to be controverted. Indeed, there is no controversy between counsel as to the meaning of the section. But it is insisted by counsel for defendant that, by a well-known rule of construction, the general provision contained in the words “ that any wilful act or omission of duty by which the state, county, city, or town is defrauded, or attempted to be defrauded, of any money,” must be referred to and limited by the particular offenses specifically defined in the three classes of offenses before created in this section. While it may be seriously doubted whether this rule of construction has application here, for the purpose of avoiding useless argument, and to simplify the remaining discussion, it may be conceded that neither of the counts in the indictment can be supported by this section, it having reference to only the three specific crimes of, (1) making false entries; (2) making false certificates or indorsements on warrants; and (3) loaning public moneys; and then, by. the general clause following, any other offenses of like character with the three specific offenses just named.

The three preceding sections of the code, 2787, 2788, and 2789, thus creating- and defining particular offenses, and neither count in the indictment being drawn under nor maintainable by reference to them, we come to the last provision on the subject of embezzlement, § 2790.

After enumerating and defining specific offenses in sections 2787, 2788, and 2789, the code then furnishes a general residuum law in § 2790, covering all other classes of fraud and embezzlement not specifically provided for in the preceding three sections.

Section 2790, in language so broad and comprehensive as to include every other case of embezzlement not already particulaidy provided for, declares that “if any officer, or other person employed in any office within this state, shall commit any fraud or embezzlement therein, he shall be imprisoned in the penitentiary not more than ten .years, or in the county jail not more than one year, or be fined.”

Neither of the counts of the indictment charging any of the particular offenses specifically defined in sections 2787, 2788, and 2789, we are driven to the general law contained in § 2790. All of the counts may be referred to and maintained under this general law, unless, indeed, they are so fatally defective in structure as actually to charge no offense known to the law.

There was no special demurrer to any count, and there was no motion to quash the indictment. The motion in arrest can only be sustained if á general demurrer could be sustained, and that could only prevail where the whole pleading was so fatally defective that no judgment could be pronounced upon the verdict. It cannot be seriously contended that, in substance, either or all of the counts are so utterly defective as to charge no offense punishable under section 2790. The first and second counts charge the embezzlement in the ordinary form substantially, and the third count, with much precision and circumstantiality of averment, charges a clear case of embezzlement, and we are of opinion, therefore, that there was no error in overruling the motion in arrest of judgment.

3. The next assignment of error calls in question the court’s action in giving instructions prayed by the state, and in refusing some asked by the defendant.

The first instruction for the state declares that “if the whole evidence shows no reasonable excuse for the defendant’s failure to pay over the money alleged to have been embezzled to his successor in office, and raises no reasonable doubt of his innocence, then he is guilty of embezzlement,” etc. The expression, “and raises no reasonable doubt of his innocence,” it is contended, was incorrect in that it, in effect, required the defendant to show his innocence. We think this contention arises from a misapprehension of the meaning of the language complained of. The language is not that usually employed in charges by the courts in instructing juries as to reasonable doubt. But what real difference is there between an instruction which charges a jury not to convict if there is reasonable doubt of innocence, and one charging that there could be no conviction if there was reasonable doubt of guilt? Seasonable doubt of innocence forbids conviction; reasonable doubt of guilt forbids conviction. The vital question is “ guilty or innocent,” and so long as there remains a reasonable doubt as to guilt or innocence there can be no conviction.

But if this unusual language alone were misleading, the first charge given for the defendant neutralized its harmfulness, for this charge said : “In reference to the instructions given for the state, the jury are now charged that any of them devolving on defendant the necessity of explanation is satisfied if the evidence anywhere raises a reasonable doubt of his guilt in their minds.” And in the defendant’s 7th and 13th instructions the jury is again informed that any reasonable doubt of the defendant’s guilt will require an acquittal. In addition, the 4th instruction for the state informs the jury that “ if all the evidence in the case furnishes no reasonable explanation of what became of said money, and raises no reasonable doubt of his guilt, he is guilty,” etc. Furthermore, the 8th and 11th instructions for the state clearly advised the jury that the defendant was entitled to the benefit of any reasonable doubt of guilt arising out of the evidence.

We are enabled, therefore, to say that the jury was not misled by the peculiar phraseology employed in the state’s first instruction.

The first, fourth, sixth, eighth, ninth, and eleventh instructions given for the state are excepted to on the ground that they, and each of them, announce that any shortage shown by the books and failure to pay over of itself make out a prima fade case of embezzlement, and that the jury should convict, unless all the evidence raises some reasonable doubt of guilt. It seems to be admitted that the shortage as shown by the books of the treasurer’s office and failure to pay over was competent, and that it made out aprima fade case, if not disturbed by any other evidence, follows inevitably. That this prima fade case of embezzlement, thus made out and undisturbed, would warrant and require a conviction, logically follows also. Indeed, to the legal mind, the statement of the proposition is alone necessary to secure assent to its correctness.

But the exception goes farther and charges that the informing the jury, in these several charges, that it should convict was a violation of our law which forbids any court to charge upon the weight of the evidence, and was an invasion of the province of the jury. The contention is that the court was confined to instructing the jury that it might convict, and was excluded from instructing that it must find defendant guilty. The contention appears to us hypercritical. It is a contention about words. There is no effort to aid the jury in ascei’taining the facts, nor a hint as to any opinion the court entertained upon the evidence, or the weight of the evidence, or upon any particular part of the evidence. There is an open and unmistakable direction to the jury that ou a certain proved state of facts, the crime with which the defendant was charged was, in law, made out, and a charge to the jury, that on this proved state of facts, which made out the crime charged, it was their duty to convict. What is the error ? Shall an honest and fearless judge engaged in the administration of the criminal law speak only in modulated accents and with bated breath and advise the jury simply that they may convict? Never! The judge can only tell the jury that they may find the facts as they will, but he is bound by his oath and honor to tell the same jury that they must follow him in his legal definitions and conclusions.

The criticism of counsel for defendant upon the state’s third instruction is based upon a fatal misconception of its meaning. It is contended by counsel that this instruction required the jury to convict if the defendant’s shortage, as shown by the books, was produced by reason of his having paid out money in good faith, upon warrants not lawfully drawn. In other words, it is asserted, that this instruction authorized a conviction even if there was an unwilling error made by the defendant in paying out money upon a warrant not lawfully drawn, though he had no guilty intent and proceeded in good faith, though contrary to law. If the instruction really so charged the jury, it would be obnoxious to the criticism. But the instruction tells the jury that if “ Hemingway, as treasurer of the state, wilfully and fraudulently disbursed or otherwise made way with the moneys of the state that came into his hands, save in payment of warrants lawfully drawn on the treasury, or in the payment of bonds and interest and coupons, or in payment of loans made to the state treasury, then he is guilty of embezzlement,” etc. It seems to us quite plain that the court only designed to tell the jury that if the defendant wilfully and fraudulently disbursed or otherwise made way with moneys of the state, the offense was complete, unless such money had been paid out on warrants lawfully drawn, etc. That clause of the instruction as to the disbursement of money on warrants lawfully drawn, if meaningless or confusing, cannot be regarded as harmful to the defendant, since, if misleading at all, it was misleading in a direction favorable to the defense.

The fifth instruction for the state gives rise to serious contention and the several grounds of this contention, in connection with like grounds to the state’s fourth instruction, not heretofore adverted to by us, we will now proceed to consider.

The fourth instruction charged the jury that if it believed from the evidence that defendant “ on final settlement with the state is due the state any sum of money, received by him as treasurer, which he has not disbursed according to law, or paid over to his successor, then it devolves upon him to explain what became of it, and to give a reasonable excuse for such failure to pay over, and if all the evidence in the case furnishes no reasonable explanation of what became of said money, and raises no reasonable doubt of his gnilt, he is guilty of embezzlement,” etc.; and the fifth instruction for the state told the jury, “ that in a prosecution for embezzlement against a state treasurer, the state is not bound to prove any positive acts of concealment in connection with the public moneys intrusted by the people to his safe keeping. It is sufficient if the testimony proves that the defendant has made way with the money, or gotten rid of it, wilfully and fraudulently, in any manner not allowed by law in the disbursement of such funds or upon the state’s account,” etc.

The contention is that there can be no embezzlement, in legal contemplation, if the entries in the books of account are correctly kept, and no concealment of the fact of any shortage is made, or attempted, by the accused, and there is only the failure to pay over the balance due, as shown by the books, and that this rule was clearly violated in the instructions now under consideration. It must be admitted that the rulings and remarks of English judges in early cases on statutes against embezzlement give countenance to the contention, and that the subject is not free from difficulty, in the light of these English decisions and the authorities which have rather heedlessly followed them. But it is to be noted that the English adjudications are not in harmony with each other, and that the doctrine contended for by appellant’s counsel has more than once been disregarded in cases whose facts forbade adherence to the rule without palpable failure to attain the ends of justice.

The authorities cited in the brief of counsel for appellant demonstrate the perfect accuracy of our remark. In Roscoe’s Cr. Ev., p. 473, it is stated, referring to the case of Rex v. Smith, that “ the bare non-application of money in the manner directed is not sufficient whereon to convict a person of embezzlement.” But it is added by that author: “ For all that appeared in that case, the servant had never appropriated the money at all.” And an examination of the case itself of Rex v. Smith, p. 516, Russ. & Ry. Crown Cases, distinctly discloses that the point decided was that the moneys were received by the prisoner by virtue of his employment, and he was therefore guilty, and that the question of the non-application was not considered by the judges in upholding the prisoner’s conviction.

The other case relied upon by Roscoe, and cited by appellant’s counsel, is that of Rex v. Hodgson, 14 Eng. Com. Law Reports, 377, as holding that non-application of money in the manner directed, or, in other words, failure to pay over according to legal obligation, is insufficient whereon to convict one of embezzlement. The report is miserably meagre on its statement of the facts. Indeed, it is literally true that there is only the brief syllabus which should pi’ecede the report, but the report itself is wanting. The syllabus is in these words, viz.: “ It was the duty of the clerk to receive money, daily at N., to enter all such moneys so received in a book, and to remit the amount weekly to L. His entries were all correct, and admitted the receipt of all the moneys; but he did not remit them to L., as was his duty: held, no embezzlement.” We are wholly unable to say what weight attaches to the decision of the case, because we are in possession of neither the facts necessary to enable us to comprehend the consideration of the case, nor of the opinion of the court showing by what process it arrived at its conclusion.

But Roscoe, in the same paragraph from which we have quoted, is careful to say: “ But, on the other hand, it is clearly settled that a prisoner, by making an admission in bis account that he has received the money, does not necessarily free himself from the charge of embezzlement, if there be other circumstances from which the jury may infer that the money was fraudulently appropriated. Any doubt on this point arises from not keeping clearly in view the distinction between the offense and the evidence of it.”

In a later case, Rex v. Grove, 7 Carrington & Payne, 635, by a divided court, the doctrine insisted upon by counsel is plainly repudiated. In this case, Grove, the prisoner, was a cashier in a London bank, and his duty was to take charge of the cash, and this cash he was required to enter in what was called “ the money-book.” It was his duty, further, at the close of each day’s business, to see that the cash in hand agreed with the “ money-book,” and strike a balance showing the same in cash which the cashier had in his charge. On a certain day the cash in the money-book, at the close of business, was ¿61762, which sum the prisoner carried forward properly, and it formed the first item of account in the “ money-book” next day. On the latter day, at the close of business, the prisoner, after crediting himself with money paid out by him (for it was his duty to pay out as well as receive money), and after charging himself with the cash received, made the balance on the “ money-book” ¿61309, and this sum of money the prisoner ought to have had on hand. On this same day, the prisoner, being required to settle his accounts and produce said sum of ¿61309, confessed a shortage of about £900, and an examination showed an actual shortage of £964. On trial it was shown that Oxley, the bank partner, who proved the whole case for the prosecution, had no knowledge when the money, or any part of it had been purloined, from what persons received, what sort of money had been abstracted, or whether it had been taken from the till or upon receipt from customers of the bank. The prisoner was convicted, and, on appeal, it was held that the evidence was sufficient for the jury to find that the prisoner did embezzle the sum named in the indictment.

In a still later case, Regina v. Jones, 34 Eng. Com. Law, 393, Alderson, B., on trial at the Monmouth assizes, declined to adhere to Rex v. Grove, and said: “Whatever differences of opinion there might be in the case of Rex v. Grove, that proceeded more upon the peculiar facts of that case than upon the law. It is not sufficient to prove at the trial a general deficiency of account.”

It will thus appear that there is much confusion on this point in the reported English cases, but we are bound to hold that the rule declared in Rex v. Grove is the true rule. There can be no other rule in cases involving public officers holding for long terms, and having absolute control and custody of public funds, and whose official actions can be only known to the people by their official reports of the state of their accounts made from time to time. If the failure to pay over the balance shown by his own books, granting the books to be correctly kept, and granting nothing in the officer’s conduct worthy of reprehension, so far as any official act discloses such conduct, will not warrant a jury in inferring a conversion of any sum found to be short, then the indictment and prosecution of any state treasurer, or other officer of like character, will not only be a vain and empty form, but it will be, moreover, a shameful and demoralizing play of judicial legerdemain by which even the notoriously guilty shall surely escape just punishment. If the doctrine that a failure to pay over, as required by legal obligation, standing unexplained and unrelieved, will not warrant conviction, then the unfaithful public officer may safely convert the public -moneys to his personal use, and either boldly refuse, or blandly fail, to settle and pay over the unexplained balance, and securely defy a plundered people by simply wearing an unruffled countenance, and maintaining a placid demeanor, and keeping correct books, and not publishing to the world that he is steadily emptying the state’s treasury vaults. Surely, it cannot be thoroughly believed or successfully maintained that such a transparent travesty of judicial proceeding would not transform the courts of the country into mere theatres for idle mummeries. And yet this is exactly the situation in which we shall finally find ourselves, if it is true that no ci’iminal responsibility attaches to a simple failure to faithfully account for and pay over public moneys by the state’s officers, without reasonable explanation, according to their legal obligation.

In the very nature of things, the fiscal agents of the state, who are employed in the receipt and disbursement of public money through long terms of office can rarely, or never, be convicted of embezzlement, even where they fail or refuse to pay over, though there be an unexplained shortage in the final accounting, except by the evidence of that shortage itself and failure to pay over, and so the plainest requirement of necessity, will drive us, in the administration of the law punishing the crime of embezzlement, to hold that the balance shown to be due by the officer’s own books and failure to pay over, unexplained and untouched, must alone warrant a conviction. The rule is not only a necessary one; it is eminently reasonable and just as well.

Can it be regarded as unjust or unreasonable that a public servant shall be tried by the record of his official acts which he himself has made in obedience to legal duty; or that the evidence made by his own official record of his acts shall be held, in the absence of any other proofs, sufficient to make out a prima facie case of guilt, and therefore sufficient to authorize and require a jury to convict? We think not.

The correctness of these views is distinctly recognized in the case of the State v. Leonard, 6 Coldwell, 307, and in the case of the State v. Cameron, 3 Heiskell, 78, and it would seem to be assented to in the case of the Commonwealth v. Tuckerman, 10 Gray, 173.

The cases cited by counsel combating this view are, we believe, with a single exception perhaps, clearly distinguishable from the case at bar.

It is further contended that, on this branch of the case, error was committed in the giving of the state’s fifth, instruction, inasmuch as the jury was thereby told that no “ positive acts of concealment in connection with the public moneys entrusted by the people to his (defendant’s) safe-keeping” were necessary to be proved.

The contention is not well taken, for the reason that it presupposes the necessity of the existence .and proof of positive acts of concealment of the offense in order to constitute the crime. Concealment, flight, evasion, false entries etc., are but so many circumstances evidencing guilt. They are evidential only, and not essential to the constitution of the crime, and the error of counsel arises out of the failure to bear this distinction in mind. The apparent or real confusion in the authorities, variously cited, has arisen out of the same failure to notice and observe this distinction between the evidence of the crime and the essence of the crime. Evidence of concealment, or evidence of flight, or evidence of absence, or evidence of false entries may be absent, and yet all the essentials constituting the crime may be shown by other proofs.

The ninth instruction for the state is to the effect that the law presumes the auditor and treasurer each complied with the law in making charges and credits on their books, as to receipts and disbursement warrants, and as to furnishing each other with monthly statements of the same, and the law further presumes that their books are correctly kept, and if the incoi’rectness of the books is relied upon as a defense, then it devolved upon the defendant to show such incorrectness, unless the whole evidence raises a reasonable doubt as to the correctness of the books. Kecords of matters of a public nature, made and kept in a public office, have always been admissible in evidence on the ground that they have been made by authorized official agents appointed for that purpose, and on the ground of their publicity, and, in addition, because of the presumption arising in favor of the due execution of official acts by those charged with the duty. If there were no presumption of the correctness of official records of acts done in a public office, it would be impossible to introduce the record until the correctness of all its entries had been otherwise shown by extrinsic evidence, and when this had once been done, the introduction of the books would become unnecessary and meaningless. The rule is that, in acts of an official nature, everything is presumed to be rightly performed until the contrary is shown

The official records of the offices named were properly admitted, and the presumption of law was in favor of their correctness. That this presumption may be rebutted is undeniable, but it is equally undeniable that, until rebutted, the presumption must stand. Who, then, shall be required to make an alleged incorrectness in the official records manifest? The person who produces the official record, and rests upon the legal presumption of its correctness, or he who asserts the incorrectness and relies upon that as a defense to rebut the legal presumption ? The question will answer itself, and its answer will meet this contention.

But it is further insisted that this ninth instruction for the state was otherwise erroneous for two reasons: 1. Because by this chaige the court not only informed the jury that the books are evidence of the correctness of the entries therein, and also evidence of the incorrectness of any other evidence, and that the instruction was therefore a charge upon the weight of evidence; 2. Because the instruction required the defendant virtually to prove his innocence.

By this second proposition we suppose it is meant to be said that the presumption of innocence is affected or destroyed in part by the legal presumption of the correctness of the records, and that this favored presumption of innocence cannot be met by another presumption, but must be destroyed by positive proof. This contention rests upon the unsubstantial ground that the general presumption of innocence is irrebuttable by any other legal and favored presumption. The rule is, in case of conflicting legal presumptions, the special and favored must prevail, or take precedence over the general. And the practical operation of this rule we see constantly exemplified in trials for murder. In these trials for even capital offenses, we shall constantly find the legal presumption of malice, arising from the use of a deadly weapon, and we shall see this presumption taking precedence over the general presumption of innocence, in the absence of any other evidence showing circumstances of justification or excuse for the homicide. In this sense, and to this extent, in such cases, by the legal presumption of malice, the accused is put to proof of his innocence outside of and beyond the general presumption of that innocence. See subsection, 3 Best’s Ev. 599 et seq. But, after all, it remains to be said that no proper interpretation of the instruction complained of can support this branch of the contention. All that was done was to permit the jury to be informed that there was a legal presumption of the correctness of the official books, and if this was not permissible, then it must be conceded that the presumption of innocence is irrebut-table by any other presumption, — a proposition'not to be tolerated in a court of law — for conflicting presumptions must always go to the jury as other conflicting evidence.

The first contention on this point is based upon a misapprehension of the instruction. The court did not declare the presumption of the correctness of the official records conclusive and irrebuttable, but plainly declared such presumed correctness of the records might be met and overcome by proofs made by the defendant, or by all the evidence in the case.

The views we have announced upon the sufficiency of all the counts in the indictment under § 2790, and the opinions which we have propounded on the several legal propositions embodied in the instructions given for the state will render superfluous any consideration of the several identical or similar questions contained in the defendant’s refused charges.

The fourteenth instruction for the defendant, which was refused, sought to have the jury informed that while the unexplained books and reports of a public officer, showing a balance against him, are evidence to establish a liability in a civil proceeding, in a criminal case, to make such balance evidence of a receipt of the moneys by defendant, it must appear from the evidence that defendant himself kept the books, or himself directed the entries to be made therein with full knowledge of their character, or with such knowledge made up or signed the reports himself, or with such knowledge directed the entries to be made therein, and that if the jury was not satisfied beyond a reasonable doubt that defendant with such knowledge either made the entries or directed them to be made, then such books were not evidence of the receipt of money.

There was no error of the court in refusing this instruction. The defendant was state treasurer and as such was charged by law with the custody of the public money, and with the keeping of the official records showing his dealings with them. If he did not himself receive and disburse the moneys, and if he did not himself make the entries in the records of such receipts and disbursements, but employed another to perform his duties in these particulars, the action of that other must be held to be his action, and his criminal liability cannot thereby be evaded, except by showing the incorrectness of the books so kept by such other person. The law confided the great trust to the defendant, and for its execution, whether by himself or another, the defendant must make answer.

The seventeenth refused instruction sought to have the jury informed that unless the evidence showed that defendant had the moneys alleged to have been embezzled in his hands on January 6, 1890, and so having them wilfully defrauded the state by not delivering them to his successor, he could not be convicted under the third count of the indictment.

It is true that the third count states that the defendant then, on January 6th, had the money alleged to have been embezzled in his hands, but this statement was not that of an essential fact necessary .to be averred and proved in order to constitute the crime and show defendant’s guilt. The offense charged in the third count was a wilful and fraudulent omission of a legal duty on the part of defendant, to wit, the wilful and fraudulent failure of defendant to pay over the ascertained balance, as shown by the records, due from him to the state, to his successor in office. The mere recital of the fact that the money then remained in his hands was not necessary to be proved, because it was not the statement of an essential fact constituting the crime. The crime charged, if proved, was complete whether defendant actually had or had not the money in his hands. The statement of the fact was immaterial, and imposed no duty upon the state to prove it, and, hence, any instruction requiring the jury to consider this immaterial averment and. to acquit if it had not been proved, would have been grossly misleading.

The refused instructions for defendant, in reference to the question of reasonable doubt, were immaterial in view of the fact that other and numerous instructions were given in which the law on this point was fully and fairly stated. So, too, the action of the court in refusing the twentieth instruction prayed by defendant could not have been hurtful, since in other charges the jury had been distinctly advised that the offense must have been committed wilfully.

The twenty-first instruction was properly refused on several grounds, and chiefly because there was not evidence to warrant the giving it.

There was no reversible error in the action of the court in refusing the defendant’s twenty-second, twenty-third, twenty-fourth, and twenty-sixth instructions, in which the attention of the jury was particularly directed to the evidence of the defendant’s previous good character, the absence of flight, and the correctness of the books in the treasurer’s office, and perhaps other circumstances of like character. Nor does the action complained of fall under the condemnation of any principle announced in the case of Lamar v. State, 64 Miss. 428, and Gerdine v. State, Ib. 798. The principle is, that when, upon a proved state of facts, the law draws a certain conclusion, then it is the duty of the court to state to the jury the legal conclusion upon the proved facts. But there is no duty upon the court to emphasize certain inconclusive circumstances from which the law raises no presumption. All that could be properly said on such inconclusive circumstances is that they are competent evidence for the jury’s consideration, and this is sufficiently done by the admission itself of the circumstances in evidence.

The refusal to give these instructions is clearly within the rule of practice announced in Cheatham v. State, 67 Miss. 335. In that case the action of the court below in giving an instruction that the jury might consider any threats against deceased, proved to have been made by the accused, and any motive to kill established by the evidence, together with all the evidence, was assigned for error. Said Judge Cooper, in delivering the opinion of the court: The instruction does not “ announce any erroneous proposition of law. On the contrary, by admitting such evidence, the court declared its competency, and it is true that the jury may and should consider all the evidence in forming its verdict. While we do not think the instruction erroneous in the sense of entitling the accused to a new trial, it is much to be hoped that the courts will reject such charges when asked. Counsel representing the state may very properly argue before the jury the effect of such evidence. But the field of argument is so nearly invaded by such instructions that the court may with propriety decline to give them.”

The views hereinbefore announced, either on the pleading or upon the instructions, both for the state and the defendant, are thought to settle the correctness of the court’s action on the refused instructions not specifically reviewed by us. The legal principles applicable to the case were fully and fairly given to the jury in our opinion.

4. The fourth assignment of error goes to the action of the trial court in refusing to compel the state’s counsel to elect under which count of the indictment he would proceed.

The motion is • not one of right, but is addressed to the sound discretion of the court, and we should not reverse the action complained of, unless manifestly erroneous. But the conclusive answer to this contention is, that the motion to compel the state to elect was not made until after defendant had pleaded to the entire indictment, and until after the trial had actually progressed to that stage where the state had introduced its evidence and had rested. The motion was then too late, as has been repeatedly held in this court. George v. State, 39 Miss. 570, and cases there cited.

5. The fifth assignment of error brings under review the action of the court below in refusing to set aside the verdict and grant a new trial. The grounds upon which the motion rested have been already examined by us, except those predicated upon the alleged misconduct of the district-attorney in his concluding argument, and upon the verdict of the jury itself.

On the first ground, viz., the alleged impropriety of the behavior of the state’s counsel in his concluding argument, we have to say, briefly, that while recognizing the privilege of counsel to the exercise of the largest liberty in argument, and while admitting pardonable liability of the earnest advocate to transgress the bounds of permitted license, still, in this case, or in any case, if it seemed probable to us, on a full survey of the whole case, that the unwarranted remarks of counsel had swerved the jury from the right line, or had contributed to secure a verdict not clearly responsive to the evidence and the instructions of the court, we should feel it our duty to reverse. In all cases not clear upon the facts, the improper course of counsel which might have assisted the jury in reaching a given conclusion, independently of the evidence, would authorize a reversal. But where the sweep of an irresistible tide of evidence would, despite all immaterial errors of court, or reprehensible lapses from propriety of counsel, bear an enlightened mind and conscience to a fixed conclusion of guilt, the appellate court may not properly reverse.

Some things said by the state’s counsel should not have been said, and other things would have been better left unsaid, we are free to confess; but we have looked in yain for those gross professional obliquities in the conduct of the district-attorney’s argument, and which are supposed by appellant’s counsel to have swept the jury from its feet and secured a verdict not supported by the evidence.

6. As to the only remaining contention that the evidence was not sufficient to support the verdict, it is our plain and imperative duty to say that the shortage in the defendant’s accounting with the state, or its treasurer, is put beyond the reach of cavil by the evidence in the record before us. The official records required by law to be kept by the treasurer bear silent witness against the defendant, and this silent witness is powerfully supported by a vast mass of other and independent and convincing evidence pouring in the same direction.

If this deficiency of more than $300,000 has arisen because of errors in the defendant’s receipting his predecessor in office fourteen years ago, how is it possible to conceive the failure to discover such errors prior to 1886, when, on the basis of that settlement with Holland, the former treasurer, the defendant was only chargeable with a balance of about $7000? Does not human credulity stagger when asked to believe that the defendant was, in 1886, actually carrying the state as his debtor for more than $300,000 ? And yet this must be conceded, if it was true that this balance of $315,000, alleged to have been embezzled, was created by an error of like amount against tbe defendant, growing out of tbe settlement with Holland.

If this great balance is tbe product of error in book-keeping since 1886, when the accounting disclosed only about $7000 in tbe defendant’s bands, is it not equally incredible that all tbe official and unofficial, public and private, examinations of tbe records in tbe treasurer’s office have signally failed to discover that tremendous fact?

That tbe defendant has not accounted for or at all explained bis failure to produce or pay over tbe great balance shown to have been in bis bands, or to have been converted or made way with by him, is incontrovertibly made certain, and all tbe evidence in tbe case leaves us no solid ground upon which to rear any other conclusion than that arrived at by tbe jury on tbe trial below.

Affirmed.