People v. McKinney

10 Mich. 54, 1862 Mich. LEXIS 25

Opinion

Cheistiancy J.:

This case comes to this Court on exceptions, after verdict and before judgment, in pursuance of chapter 166 Revised Statutes of 1846 (Comp. Laws, chap. 197).

The information is based upon § 5771 Comp. Laws, and charges the defendant with having embezzled the moneys of the State while State Treasurer.

Exceptions were taken to the ruling of the Circuit Judge upon the admission of evidence, and to his charge to the jury. The jury returned a verdict of guilty.

A motion was made in arrest of judgment, on the ground that, for the several reasons urged, the information was insufficient to warrant a, conviction, or to sustain a judgment against the prisoner. This motion was overruled by the Court; the defendant excepted, and the motion, the decision upon it, and the exceptions to that decision, are incorporated in the exceptions. All further proceedings were stayed in the Court below to await the decision of this Court.

If is insisted by the Attorney General that the questions involved in the motion in arrest of judgment, relating, as they do, to the information, or the record proper, can not be raised in this Court, upon the present form of proceeding, but only upon writ of error after judgment.

We see no ground for this objection. The whole record is certified to us, and required to be certified in this case substantially in the same manner as upon the return to a writ of error: it is therefore judicially before us, as well in the one case as the other, so far, at least, as to enable us to pass upon all questions raised by the exceptions, which is as far as necessary to go to dispose of all the questions raised upon the motion in this case. And it would seem from the decisions in Massachusetts, (from whose statute this chapter of ours is copied) that a motion in arrest of judgment is treated as a proper subject of exceptions under this statute: — Commonwealth v. Dougherty, 6 Gray, 349; Commonwealth v. Sullivan, Ibid. 477; Commonwealth v. Cummings, Ibid. 487; Commonwealth v. Smart, Ibid. 15.

But in the present case it is unnecessary to decide whether any question, not otherwise a proper one for exceptions, can be made so by a motion in arrest, and exceptions to the decision upon the motion: as we are all of opinion that the sufficiency of the information would necessarily have arisen had no motion in arrest been made. Exceptions are presented here upon the admission of evidence and the. charge of the' Court. Without referrence to the information, to see the nature of the offense charged, we could not understand, or pass upon, the exceptions. If the information upon examination be found to charge no criminal offense, or to be so defective in matter of substance as to warrant no conviction, or judgment against the prisoner, under any evidence or charge which might have been given, then no evidence could properly have' been received, and it would be worse than idle for us to determine whether any particular evidence was properly admitted, ’or any particular charge wrongly given. No such question could then be properly involved in the case, and all we might say upon it would be extra judicial. Again, by the statute, Comp. Laws, chap. 19Í, §6, we are to “give directions as to a new trial, or such other proceedings as right and justice shall require.” For this purpose we must look to the information, to see whether it is sufficient to warrant the conviction, or any further proceedings; if not, a new trial would be a farce.

We must therefore inquire into the sufficiency of the information. It is claimed to be insufficient on four distinct grounds.

1st. That the State Treasurer is not included in § 5111 Compiled Laws, upon which the information is founded.

2nd. That the money claimed to have been embezzled is not charged to have been in the State Treasury at the time of its alleged embezzlement.

3d. That the embezzlement is not charged to have been committed in the State Treasury; and,

4th. That the information charges no offense within the section alluded to, or any law of this State.

All these points depend upon the construction of the statute in question; for it is not claimed that the information makes a case under any other statute. The language of the statute is, “If any officer, clerk or other person employed in the Treasury of this State, or in the treasury of any county, or in any other public office within this State, shall commit any fraud or embezzlement therein, he shall be punished,” &c.

The counsel for the defendant has urged, with great ability and ingenuity, that this statute was not intended to include the State Treasurer himself- — -that he, being a public, constitutional officer, the head of a department, the only security contemplated against his official misconduct is his official bond, and his only restraints a high sense of honor, liability to impeachment and removal from office; that it is unprecedented to render heads of departments liable to indictment for malversation in office — that in the phrase, “ employed in the Treasury of this State,” the term “ employed,” implies an employer, and must be understood in the sense of “procured to render service, as a master employs a servant,” — that, in this sense, it accords with the idea of embezzlement in other cases, which always supposes a relation of trust and confidence, as in the case of clerks and servants; and that it must therefore be understood here as applying only to subordinates in the office, employed by the Treasurer — that though the words are “ officer, clerk or other person employed,” the term officer' is satisfied by the Deputy Treasurer, who is appointed by the Treasurer, and an officer authorized by the statute.

This argument is not without plausibility; but we do not think it will stand the test of a careful examination.

That the dictates of honor, a regard for reputation, the hazard of incurring public scorn and reprobation by impeachment, and a liability upon his official bond, would be a sufficient restraint upon a man who has been elevated to an honorable position of public trust, might to the moralist in his closet seem a well founded theory. But unfortunately it is a theory ^yMch Ras too often been found to yield to the force of temptation, here and elsewhere, to admit of universal application. It pre - supposes that none will be elevated to office who do not prefer an unspotted reputation to ill-gotten gains; for official bonds are apt to prove as unproductive as official oaths. And, however experience may have warranted, its application to other officers, such is the tendency of the public funds to create an “ itching palm” that this theory can- not with safety be applied to those officers who are entrusted with their custody and control. Such at least would seem to be the lesson taught by experience or suspicion, in at least six States of the Union; in each of which their statutes have very clearly rendered the State Treasurer himself, as well as other public officers, criminally liable by indictment, for embezzling the public funds. See the statutes of Pennsylvania, New Jersey, Mississippi, Texas, Wisconsin and Iowa, collected in note to Arch. Cr. Pl. by Waterman, 446, 447, &c. And doubtless the same will be found true of other States.

We do not think the term “employed,” as used id our statute, can be restricted to the narrow sense contended for by defendant’s counsel. It is true such is the sense in-which it has been quite generally used in reference to embezzlement; but this we think has so happened, mainly because this crime always pre-supposes the offender to have come rightfully into the possession of the money oi' property, by reason of some position of trust and confidence; which is the principal feature distinguishing this offense from that of larceny. And the crime has been more frequently and generally provided for as to clerks, agents and servants, than as to public officers; and, as the former are so much more numerous, the offense has been more frequently committed by them. But the Statue Treasurer also occupies a position of trust and confidence, the only difference in this respect being that one is entrusted, confided in and employed, by a private person, or some officer or officers, the other by the public, by election or-appointment.

The primary signification of the word “employ,” is not that for which the defendant’s counsel contends; the-primary meaning, as given by Webster, is “to occupy tbe time, attention and labor of; to keep busy or at work,” ¿so., the sense which would here include the Treasurer. The sense claimed by defendant’s counsel is the fourth .given by Webster; “to engage one’s services.”

But little force, however, can be given to an argument drawn from the primary or secondary meaning as given by lexicographers. The only question is, what is the sense in which it is used in this statute? — and this is to be determined from the context, and the apparent object of the provision, as indicated by the nature of the case and other statutes in pari materia. As to the object — the mischief to be guarded against — we can see no satisfactory reason why the Treasurer himself, who has entire control of the funds, and therefore better opportunities and greater temptations to peculation, should not be held liable as well as the subordinates appointed and removable by him, and whose opportunities and temptation are less.

A history of the origin of this section, and the various phases through which it passed in the legislation of the State, till it assumed its present form, will, we think, satisfactorily sho.w that the Treasurer was intended to be included. Its origin in this State (substantially copied from the Revised Statutes of Massachusetts) will be found in our Revision of 1838, p. 630, §26 : “If any clerk or other person employed in the Treasury of this State.” Here the word “officer” does not appear, nor does the section include the clause, “ or in the treasury of any county, or in any other public office within this State.”

But the Legislature of 1839 do not appear to have been satisfied with this provision, and, by amendment, added to a subsequent chapter, “That any public officer of this State (who) shall receive or be entrusted with the money or funds of the State, to be kept or disbursed for or on account of the State, and who shall expend or pay out such money or funds in any other manner, or for any other purpose, than is or may be provided by law,” &c., “shali be deemed guilty of a misdemeanor, and for each offense be punished,” &c. : haws of 1839, p. 233. This section certainly includes the State Treasurer. No deputy State Treasurer was authorized until the session of 1840..

Thus stood the law until the Revision of 1846. This Revision consisted mainly of a revision and consolidation of then existing laws. We have seen that the section now in question, in its original form in the Revision of 1838, was, “if any clerk or other person employed in the Treasury of this State:” the law of 1839 applied to “ every public officer of this State who shall receive or be entrusted with, the money or funds of the State, to be kept or disbursed for or on account of the State.” In the Revision of 1846, this section does not appear as an independent provision, nor does the original section cited from the Revision of 1838 appear in' its original form; but, in its. place, we find the section in a new and amended form, the word “ officer ” for the first time appearing before the word “ clerk,” and the whole provision extended to “ any officer, clerk or other person employed in the Treasury of any county or in any other public office^ within this. State.” We think this furnishes a strong and satisfactory inference of an intention to combine, in this section, substantially the effect of the original section in the Revision of 1838, and the amendment by the act 'of 1839, so far at least as to the- persons intended to be included in. its provisions. We are therefore entirely satisfied the State Treasurer is an “officer” included within this section in its present form.

We must therefore examine the other objections to the information.

To constitute the offense under this section, it is undoubtedly necessary, not only that the embezzlement should be committed by an “officer employed in the Treasury,” but it must appear that the offense was committed “ therein,”that is, in the Treasury — for this is an essential characteristic of the statute description of the offense.

Before examining the several counts of the information, it will be proper to determine the sense in which the term “Treasury” is here used. It is insisted by defendant’s counsel that it is to be understood merely in the sense of locality, as descriptive of the particular building (in this case the argument would confine it to the particular room, as there is no treasury building) within the walls of which the Treasurer keeps his principal office, or place of official business, at Lansing, and where the public moneys are kept (though we do not readily see why the Treasurer may not keep such 'office in one building and the money in another). The Court below seems to have understood the term in the sense in which it was evidently used in the old and the new Constitution: “ No money shall be drawn from the Treasury but in consequence of appropriations made by law” — “No money shall be drawn from the Treaswry for the benefit of any religious society;” and in the statute requiring the Treasurer to make an, “ annual report of the balance in the Treaswry to the credit of the State:” — Comp. I. §161: “the fiscal year of the Treasury:” — Ibid. §163. “No moneys shall be paid out of the State Treaswry except upon the warrant of the Auditor General:” Ibid. §171; “charging the Treasurer the balance in the Treasury,” &c.: Ibid. §172. In all these cases the “money” and the “balance to the credit of the State” are manifestly regarded as being “in the Treasury” whenever and wherever it is in the official custody, or subject to the official control, of the State Treasurer in behalf of the State.

Let us see which is the more reasonable interpretation. That the Legislature intended this provision as a check to the rapacity of the “officers and clerks” who might be entrusted with the receipt, custody' and disbursement of the public moneys, can not be doubted; and if the law required all the public moneys to be at all times kept in the room or building known as the Treasurer’s office, and did not allow him to place it elsewhere, or to have it in his possession, or that of his deputy or clerks, or under his official control, at any other place, there might be strong reason for the interpretation claimed by the defendant’s counsel. But our laws do not require this. "We know of nothing to prevent his receiving public moneys due to the State, if he choose to do so, at any place where he may happen to be ;• and he may certainly do so as to the sums received on loans made by the State, on the disposal of the stocks or bonds. He may take or send by his deputy, or a clerk (or transmit by draft) any amount of these funds where they may be required to be paid to the public creditors. He may place a portion of the funds in bank in such place as in his opinion the public interest or the convenience of disbursement may require. But in all these cases the money is just as much under his official control (and therefore as clearly in the Treasury), and just as liable to be embezzled by him, or his deputy or clerks who may be entrusted with its conveyance to or from the Treasury, as if it were in the Treasurer’s office at Lansing; and we can see no reason why the temptation would not be at least equally strong. Can it be supposed the Legislature intended less carefully to guard it in such cases than when within the walls of the Treasurer’s office? Clerks may often be entrusted with the reception of money out of the office, or with its conveyance to and from it. Did the Legislature intend to leave them at liberty to embezzzle it in such cases with perfect impunity, and to punish them only for embezzling it when within the walls, where they will have less opportunity and are more exposed to detection? For clerks are not included at all in the next section, nor punishable at all unless under this section.The next section (28 of the chapter) Comp. L. §5772, applies only to officers and agents of the State, who shall refuse to deliver to their, successors in office moneys, bocks, papers, <&c., and punishes the offense by imprisonment not more than five years, or fine not exceeding fire hundred dollars. Doubtless a State Treasurer might be prosecuted under this section after the expiration of his term, or his removal from office; but the punishment is less than one-half of that imposed under' the previous section, §5771, which is imprisonment not more than fourteen years, or fine not exceeding two thousand dollars. If the interpretation claimed by the defendant be correct, this section § 5771 will become the most inviolable of any provision to be found in, our criminal statutes; for no Treasurer or deputy, however intent upon public plunder, will be likely to incur the risk of fourteen years in the State prison, and two thousand dollars fine, by embezzling the funds inside the building, when he can always have a better opportunity to perform the same financial operation outside, by incurring only the risk of about one - third of the punishment — and if a clerk, no punishment whatever.

We think the Circuit Judge was clearly right in his views of what was intended by “ the Treasury” in this section, and that it was not intended to describe any particular place or locality; that, within the- meaning of this section, money is “in the Treasury” whenever and wherever it is in the official custody of the Treasurer, or qubject to his direction and control: and if he embezzle it while so in his official custody, or subject to his official control, it is an embezzlement in the Treasury. And a charge in an information of embezzling the moneys of the State, while in such official custody or control, is a charge of embezzling it in the Treasury. It -would savor too much of verbal nicety to require a strict literal adherence to the very words of the statute (except perhaps in the use of words and phrases which have acquired a specific or technical meaning, and w'hich of themselves express the very gist of the offense, as the word ravished in rape).

Nor do we think it necessary, under this statute, to charge expressly that the money was, by the defendant, “received” into the Treasury. It is sufficient if it show that the money was at the time in the Treasury, or- in the official custody or control of the Treasurer, and the property of the State, without showing how it got there.

In view of these considerations, we are of opinion that the second, third, fifth and sixth counts of the information are sufficient, in the several respects mentioned. The other counts are more doubtful, and, for myself, I am inclined to think the first, fourth, seventh and eighth counts defective, in not showing, with sufficient certainty, that the embezzlement was committed while the money was in the official custody or control of the defendant; though its receipt by him into the Treasury is clearly averred.

But it is unnecessary to enter into a critical examination of the latter named counts; since the good counts are sufficient to sustain the verdict, and the judgment may be given upon them: — People v. Shannon, 5 Mich. 71.

The only objection urged under the fourth point, and not already disposed of, is that the information is fatally defective, in not specifying with certainty the particular kind of funds, whether gold, silver or, bills; or, if it was competent at all to dispense with this specification, then, at least, the sums charged to have been embezzled should have been identified by specifying the source from which they were received, so that it might at least be known whether the prosecution was for sums the receipt of which had not been credited, or others which had been credited and afterwards embezzled.

If it was necessary to allege either of these facts, it must be equally necessai-yto prove it, as nothing is required to be alleged which is not required to be proved: Comp.. L. § 6054. If, therefore, it was necessary for the information to identify the particular money embezzled, by showing the kind of funds, or from whom received, it must be because no conviction could be had under this statute without establishing such identity by the proof. The very able argument of the defendant’s counsel upon the necessity of specifying the kind of funds, rests mainly upon the ground that, under statutes in reference to embezzlement by clerks, agents and servants of private parties, this particularity was held to be necessary, until statutes were passed dispensing with it; and that the only provisions of our statutes on this subject, are § 5945 Compiled Laws, which is confined to clerks, agents and servants, and §6061, which applies only to the crimes of robbery and larceny.

"We do not think this case falls within either of these dispensing provisions; but, on the other hand, we do not think it falls within that class of cases with reference to which they were held to be necessary. In the case of clerks, agents and servants of private parties, there" is always a principal capable of scrutinizing the acts -of those in his service, and whose private interest prompts him to vigilance, _ who has at all times power to direct and control the kind of funds to be received, and to, change this direction at pleasure; and the custody or management which those in his service may have of his money or property is, in general, but momentary, or for a short interval, to be handed over to the principal from day to day or other short periods, or whenever he may choose to resume or assume its custody or management. The acts of such servant or clerk are generally performed under the direct supervision or control of the principal, who therefore has, or may at any time have,, full and accurate knowledge of the character of the particular sums, and from whom received, and possesses facilities for tracing out the facts while transpiring or recent.

But these considerations do not apply to the State Trear surer; he has by law the entire custody and management of the public money, and may receive such description of funds as he chooses, being always accountable for cash; the public at large can exercise no control or constant sujiervision over Mm, nor assume the direct custody of the funds; nor is any other officer or officers authorized to assume it, or to direct the funds to be received. Within, the sphere of his legal duties the Treasurer is independent of all other officers and of the public; and, though bound to account to the Auditor General and to the Legislature, he is not required to state the kinds of funds received, or in his hands: these are constantly varying; large sums being often represented by drafts or bills of exchange, others by credits in bank, «fee. And should he at any time embezzle or convert to his own use any of the public funds, it would, as a general rule, be wholly impracticable to trace or identify the particular pieces of money or bills, or to determine whether the sums embezzled were in the one shape or the other, or both; and it would be equally Impracticable to show that any particular sum embezzled Was the same money or funds received from any specified source or person; for, though the amounts might correspond, this would by no means establish their identity. And if the kind of funds received by the Treasurer in any particular instance, whether credited upon' the books or not, could be identified as received from a particular source, the fact that this was not found in the Treasury at any subsequent time, would not prove that the same money had. been embezzled; as this might have been honestly paid out to public creditors, and an equal amount embezzled in other species of funds, or those received from a different source.

We can not therefore suppose the Legislature intended to require proof of the identity of the money embezzled by the Treasurer, or of the kind of funds of which it consisted, or of the particular source from which it was received, without supposing they intended to render the provision they were enacting a dead letter. Such a supposition is inadmissible in reference to such a provision. The statute must receive a more reasonable and practical interpretation, and one -which shall be consistent with its manifest purpose. This statute (unlike many others on the subject of embezzlement) does not speak of the receipt of the money. It makes no distinction between embezzlement of sums which have been duly credited on the books of the Treasury, and those which have not; nor can we perceive any reason why such distinction should have been made. Had it made such, it must, as already shown, have nullified the provision by the impracticability of the proof. The offense created by the statute is the committing of any embezzlement in the Treasury, not the neglecting or refusing to account; the latter fact is mere evidence from which the former is inferred. The . information sets forth the offense which .the statute creates, and with as much particularity as the nature of the case fairly admits. I can not think it necessary to set out mere matter of evidence. We must therefore hold the information sufficient.

It is further objected, that the Circuit Court overruled a motion for an order requiring the prosecution to furnish a bill of particulars, under the general charges contained in the information.

Doubtless a general indictment for embezzlement is a -very proper case for enforcing a call for. such particulars. But the granting of an order for such particulars has, I think, generally been regarded as a matter resting in the sound discretion of the Court, depending entirely upon -fhe nature of each particular case as it appears to the Court before whom the trial is had, and its refusal therefore not assignable as error.

The order should never be refused where the Court can see any reason to believe such particulars necessary to-inform the defendant of the particular transactions, or instances of embezzlement, intended to be proved against him, so as to enable him to meet them. And it is possible — though upon this I express no opinion — that there might be cases where the refusal of an order might amount to so gross an abuse of discretion as to require us to recognize it as ground of error.

B.ut no such abuse appears here; the prosecution was by information; no information could be filed without a previous examination for the offense before an examining magistrate (unless waived by the defendant) : Laws of 1859, p. 393, § 8. This examination was required to be taken, m writing and to be forthwith certified and returned to the clerk of the Circuit Court where the cause was to be tried: — Comp. L. §§ 5992 and 6001. Upon the order for particulars being moved for, the bill of exceptions states, “it appearing to the Court that a preliminary examination had been had, and the Attorney General having stated that he should confine himself to the same charges as in such examination, the motion was overruled.” Now it would seem to be a fair inference from this language that the preliminary examination on file in the Court, was inspected by the Judge — that the examination showed the particular facts and transactions, sums claimed to be embezzled, &c., upon which the examination was had, as it naturally, if not necessarily, would. And the statement of the Attorney General, that he should confine himself to the same charges, was to be, and was understood as a statement that he should confine himself to the same items of receipt and embezzlement to which the preliminary examination related. ‘This examination being in Court, must therefore. have given, by reference, substantially the same -information that could have been given by a bill of particulars; for, of course, it would he the duty of the Court to hold the Attorney General ,to his statement; the examination could be referred to for this purpose, and there is no complaint that the Attorney General went beyond the facts in reference to which the examination was had.

The particulars called for, if furnished, would not have -constituted strictly a part of the information, nor any part •of the record proper; it would not have constituted the charges upon which the defendant was to be tried, as the-defendant’s counsel seem to suppose. Its only purpose and effect are to inform the defendant of the nature of the evidence and the particular transactions intended to be proved under the information, and to limit that evidence to the-items and transactions stated in the particulars. The defendant was to be tried upon the information, and the verdict must be “ guilty” or “ not guilty, in manner and form as. charged in the information,” not “in manner and form as charged in said information and MU of particulars?

If given, the bill of particulars would no more constitute a part of the record proper than the statement of the Attorney General, and the examination to which it referred. Any of these might be made a part of the record by a bill of exceptions; none of them was a part of the record without it»

It was as easy to discover from the preliminary examination, whether the information was intended to charge . a distinct offense in each count, as it would have been from the particulars called for. And in point of law there is no objection to charging several distinct offenses of the same nature, whether felonies or misdemeanors, in the same indictment. It is only upon the principle of the joinder of different offenses that several counts are allowed at all; though it is true several counts are generally inserted for the purpose of meeting the different phases of evidence of the same, or substantially the same, transaction. In many,, perhaps most cases, it can not be certainly known from the face of the indictment alone whether the several counts refer to entirely distinct transactions, and are intended to charge separate and distinct offenses, or not. In such cases this point is only rendered certain by the statement or opening of the prosecuting counsel, or from the particulars where such are furnished, or by the evidence in the progress of the-trial. But even when it appears clearly in any way that entirely distinct offenses are intended to be charged and proved, it is no objection in point of law; neither ground for demurrer nor in arrest of judgment; and the only way in which the objection can be rendered available is by motion to quash, before defendant has pleaded, or at least before the jury are sworn, or by calling upon the prosecution to elect in the subsequent proceedings in the cause:— 1 Chitty's Cr. Law, 248, 249 and 253, and authorities cited; Roscoe's Cr. Ev. 231 to 234, and cases cited.

As a general rule, in cases of felony, when it clearly appears, from the indictment or otherwise, that several entirely distinct felonies are intended to be charged and proved, the Court will, in its discretion, either quash or compel the prosecutor to elect: and the same course is sometimes taken in misdemeanors where several offenses in no way connected are charged. But there is nothing technical in the rule; and in the exercise of this discretion the Court will not be governed simply by the question whether several different offenses in point of law are charged and intended to be proved; but mainly, as a general rule, by the consideration whether the trial of these several offenses would involve the proof of substantially different transactions, and thereby tend to confuse'the defendant in his defense, or deprive him of any substantial right. And therefore where the several offenses charged, though distinct in point of law, yet spring out of substantially the same transaction, or are so connected in their facts as to make substantially parts of the same transaction, or connected series of facts, the defendant can not be prejudiced in his defense by the joinder, and the Court will neither quash nor compel an election. Such would seem to be the principle of the general rule to be deduced from the cases. See cases cited, 1 Chitty’s Cr. Law, 253 and 254. and notes; Roscoe’s Cr. Ev. 231, 232 arid 233.

In the present case the information charges apparently several offenses of the same kind; and if the evidence related to several substantially different and distinct transactions, it would have been a proper case for putting the prosecutor to his election. But from the bill of exceptions the evidence seems to show that all the charges grow out of, and relate to substantially the same transaction, and to make parts of one connected series of acts, and that it would be difficult to prove pne of these charges without involving most if not all the evidence necessary to support the others. The arrangement with the Detroit and Milwaukee Railway Company, the reception of the money and the failure to account for the same — these constitute equally the basis of all the charges except ' the single small item received from the Michigan Insurance Bank; as between this and the other items of proof, perhaps the prosecutor might have been properly put to his election if requested. But I think it very questionable at least whether the prosecutor ought to have been compelled to elect as between any of the sums received from the Railway Company, had the Court been called upon for that purpose. But the Court was not called upon to order an election, and no such question arises.

It is also objected that the Court erred in admitting in evidence certain account books, proved to have been kept in the office of the defendant during his whole official term, and purporting to show all the receipts and disbursements of cash in said office during such official term, and from which it appeared that certain large sums, claimed to be embezzled, had not been credited to the State. It appeared from the evidence that no part of the books was in the hand writing of the defendant, but that they were kept by the witness, as his deputy, and by other clerks'in the office. These books were objected to, on the ground that it did not appear they were kept by defendant in person.

We do not think this objection can be sustained. • It was the official duty of the Treasurer to' keep such accounts in his office; he might either make the entries himself or by his deputy or clerk; but in either case they were his •official acts; and if made by others for him, it was as much his duty to see that they were properly made, and the accounts correctly kept, as if all the entries had been, made by himself. Of course the books would not be conclusive against the defendant; but the question is upon their competency. We think they were clearly competent; and if it appeared by the evidence that any particular sum which oug-ht to have been credited to the State had not been so credited on the books, it was competent for the defendant to show that it was the error of the deputy or clerk, or that he had directed the entry and the clerk or deputy had. neglected it, or any other fact which would show that the omission was not intentional on the part of the defendant, or for a corrupt or criminal purpose.

A similar objection was made to the admission in evidence of the printed reports (in pamphlet form) purporting to be the annual reports of the State Treasurer for the years 1859 and 1860 (the two years of defendant’s official term), and to be published by authority, and printed by the State printer, and purporting to contain a statement of all the receipts and disbursements for each of said fiscal years; which reports were proved to have been made and published by direction of the defendant from the books of his office: from which reports it appeared that certain sums claimed by the prosecution to have been embezzled by him, had not been charged to the Treasurer (the defendant), and the same report for the year 1860, as printed and bound in the Session Laws of 1861, was also offered, objected to and admitted.

We think the objection to those printed reports quite as unfounded as that made to the books of account.

It was the official duty of the Treasurer to make these annual reports, and to cause them to be printed not only with the laws of the session of 1861 — Comp. L. § 161 — but also to have the same printed as soon as practicable after the close of the fiscal year (December 1st) and ready to be submitted to the Legislature: — Comp. L. §288 (this covers the case of the reports in pamphlet first offered), and to examine and correct the proof sheets: — Ibid. §289. See also §§ 290 and 291.

So far as the question of competency is involved, all these printed reports were as much original official documents as the manuscripts from which they were printed would have been under the signature of the defendant. If there was any mistake in the .printing it was competent for the defendant to show it, or any other proper matter of explanation or exculpation.

We now come to the exceptions to the charge. The first point of the charge excepted to relates only to the question whether the Treasurer is included in the section upon which the information is based, and has been disposed of in considering the sufficiency of the information.

The second point of the charge excepted to is, that “it was not necessary that the entire tax of the Detroit and Milwaukee Railway Company should be paid into the Treasury before any part of it could be regarded as paid into the Treasury: but that the payment of each installment as agreed upon by the Treasurer and the Railway Company Would be payment, to the extent of such installment, into the Treasury.”

All the testimony stated in the bill, so far as it bears upon the question (and upon this there seems to have been no conflict), shows that by the arrangement with the Railway Company, the Treasurer, in June, before the tax became due, received of the company six drafts drawn by the Secretary of the Company upon their Receiver, and accepted by him, payable at the MetrojJolitan Bank, in the city of New York, respectively on the first days of August, September, October, November and December, and on the twenty-fifth day of December, 1860 — all after the tax became due. The defendant, as State Treasurer, endorsed these drafts in June, 1860, had them discounted at the Artisans Bank in the city of New York (where he had a large amount deposited as State Treasurer), and the amount placed to his credit in his official character. The drafts were paid as they respectively matured. Now it is doubtless true that, the reception of these drafts did not amount to payment; nor did the discounting of the drafts and the placing of the amount to the credit of the State Treasurer in bank. The drafts as they became due might fail to be paid: if not paid, they would be charged back to him on his bank account as they respectively became due and were dishonored; until payment therefore the amount of each draft was subject to this contingency. But as' each of the drafts was successively paid, the amount so paid ceased to - be. subject to any contingency, became an absolute credit to him in bank as State Treasurer, and operated as a payment of so much into the Treasury, precisely as if the same amount of money had been paid by the Railway Company directly into the hands of the Treasurer. And it will hardly be contended that such direct payment in several ¡portions or installments would not be good, if the Treasurer saw fit so to receive it, merely because tbe whole had not been paid at once and a receipt given.

It is undoubtedly true that the State was not bound by this arrangement, until, or any further than, actual pay-, ments were made. But whether the State had or had not the power to repudiate the whole transaction after payment was actually made, is a question we do not think it necessary to decide. We are satisfied they were not bound to repudiate it; and there certainly is no evidence that they did: and we think it quite clear th.e Treasurer himself could not repudiate it after thus receiving payments* at least to the extent of the payments so made. The money had been obtained by him on the faith of his official character, and in the right of the State: he had no pretence of right — nor does it appear that he made any — to demand or receive it otherwise: it was placed to. his credit as Treasurer, and therefore to the credit of the State, in hank. After having thus obtained the money by virtue of his office, and placed it to the credit of the State, there is no ground for the pretence that he obtained or held it as the agent of the company.

It is further objected to this portion of the charge, that it assumes to decide what the agreement was between the Treasurer and the Railway Company in respect to the mode of payment: whereas that questio.n belonged to the jury. We do not think the charge is fairly open to this objection. The whole charge does not purport to be given, and the merely incidental manner in which the agreement is here alluded to will not authorize us to infer that the question, what the agreement was, had not been left to the jury, or was intended or understood to be taken from them. The evidence tending to show what the agreement was, so far as the exceptions show, was wholly uncontradicted. If the defendant was not satisfied with the mode in which this agreement was thus incidentally alluded to, he should have called the attention of the Court specifically to the point by a request to charge, so as to give the Court a chance to correct it, since the imperfection, if any, was such as would be likely to escape the attention of the Court upon a general exception. But we think the fair understanding of the charge in this respect, is that if the jury should find payment had been made, as the evidence tended to show had been thus agreed upon, the payment of each installment would, in law, constitute a payment to that extent into the Treasury.

The third point or paragraph of the charge excepted to, is in these words: “ That the embezzlement must have been in the county of Ingham. If the proper charge to the Treasurer of the money received would have been made in this county, and that charge was not made, it would be evidence of embezzlement in this county. A denial in that county (Ingham) by the Treasurer of the receipt of the money, would be evidence of embezzlement in that county.”

It is quite manifest, we think, that the Judge was not here attempting to define the offense of embezzlement, nor to enumerate all the elements necessary to constitute it: but that this portion of the charge relates entirely to the question of the venue of the offense, and what facts it was competent for the jury to consider in connection with that point. And we must not lose sight of the fact' that the bill purports to set out but a part of the charge, and does not purport to set out all the evidence. It would therefore be unreasonable to infer that the Judge had omitted the plain duty of defining the offense, and the elements necessary to constitute it, simply because this, portion of the charge relating to the evidence of venue does not contain such definition and enumeration. The more natural inference is, that this duty had been performed, and in a manner satisfactory to the defendant’s counsel; as' no exception is taken on that ground, but to the charge in reference to the evidence bearing upon the question of venue. We are not therefore satisfied that this portion of the charge ought to be, or was, understood as saying to the jury that the failure to account would, of itself, constitute the embezzlement, or that it would alone be conclusive, or even sufficient to establish that fact; but rather, I think, that it would be evidence which they might consider, with any other evidence in the cause tending to establish that fact; and in this view the charge was entirely unobjectionable: and upon the question of venue I concur entirely with the views expressed by my brother Campbell. A refusal to account necessarily involves an omission as one of its elements; the omission is therefore competent, though other facts may be required to make it equivalent to a refusal.

But the Judge, after mentioning the failure or omission as evidence, immediately adds: “ A denial in this county by the Treasurer of the receipt of tlie money, would be evidence of embezzlement in this county.” This last clause or proposition would, I think, be entirely unexceptionable in any view of the charge, and whether considered alone or in connection with the preceding; since it, would as clearly show a criminal intent as the most direct refusal to account. Nothing appearing to the contrary, we must presume there was evidence in the case to which the last' proposition related — evidence tending to show a denial in that county of the receipt of the money. Every part of the charge must be presumed to be correct, and to be warranted by the evidence, so far as the bill does not show' the contrary: — 2 Phil. Ev. by Cowen, Hill & Edwards, 1003 and 1004 and cases cited.

What the Judge may have told the jury would be evidence of embezzlement, or would tend to show it to have been committed in that county,, we have no means of knowing. But where a Judge enumerates several facts, and informs the jury that each would be evidence of a certain other fact, it would seem to be a fair inference that he intended the jury to consider such several facts together, and not each independent of the others; much less, that each would, by itself, be sufficient proof — unless the language will admit of no other reasonable construction; because the charge must be understood by the jury as having reference to the collective evidence upon those points in the case before them, and to the combined effect of all. We think it therefore reasonable to conclude, that both clauses or propositions of the charge were intended to be considered together, and not independently of each other, and that they were so understood by the jury. Thus understood the charge would, we think, be clearly right, and sustained by the uniform current of authorities, whether he meant to say it would be sufficient, or only competent, to show the embezzlement in that county.

But had the charge expressly made the failure to account in this case equivalent to a refusal or willful failure to account, and therefore sufficient proof of embezzlement (which .1 think it did not), I am by no means satisfied the charge would have been erroneous; for it must have then been understood to apply to the failures which the evidence in the case tended to show; and upon these there does not appear to have been any conflict. The statute defining the duties of the Treasurer required him to exhibit to the Auditor General, monthly, a true account of his receipts, and to make an annual report of such receipts to the Legislature: — Comp. X. §§160 and 161. He is sworn faithfully to perform the duties of his office. Four several payments of four thousand dollars each had been made to him, at the interval of as many successive months, before his annual report was made; and yet it appears clearly that not one of these payments had been credited to the State, or charged to himself on the books of the, Treasury; it was his duty to enter each as it was made; yet no attempt appears to have been made to explain this omission. The reason why a mere failure to account is not generally sufficient evidence of the act of embezzlement, is because it may have occurred through mistake and without a fraudulent intent. A single payment might have been omitted by mistake — perhaps two in succession, if the sums were insignificant; hardly four of four thousand dollars each, on as many different months, and all from the same source. Mistakes do not occur upon system; and it may well be doubted whether these repeated and systematic failures should not be considered in the same light as a refusal or willful failure to account. I am inclined to think they should be so considered, as equally tending- to show a criminal intent. Hence in whatever light the chai’ge was understood, I can not think the jury could have been misled to the prejudice of the defendant.

But it is further objected to the whole of this charge on the subject of venue, that proof of a refusal to account, or a denial of the receipt, in the county where the trial is had, is not sufficient to prove the offense in that county, when the proof shows that the embezzlement, if any, must have taken place elsewhere. This may be true, but we do not see how this objection applies to the present case. No such evidence appears in the case as stated, nor any thing from which the jury could have drawn such an inference. Had there been such proof, as the burden of showing error rested upon the defendant, it would doubtless have been stated in the bill.

The fourth and last paragraph of the charge excepted to relates partly to the venue of the offense, and partly to what constitutes the State Treasury. So far as it relates to the first (with the exception of a single consideration which will be presently noticed) it has been sufficiently considered under the preceding paragraph relating to the same subject. So far as it relates to the second — the Treasury— the objection has been fully answered in considering the sufficiency of the information.

But one consideration in reference to venue was strongly urged upon the argument as conclusive against the correctness of this fourth point in the charge. This portion of the charge assumes that it was not necessary the money should have been in the county of Ingham, to warrant the jury in finding that defendant embezzled it in that county. “ How,” (the counsel asks) “ could the money have been embezzled in that county if it was not there at the time?” We have already shown that, under this statute, money is properly regarded as being in the Treasury whenever and wherever it is in the official custody or under the official control and direction of the State Treasurer, for the use of-the State. Any act or series of acts on his part, by which the money should be taken or abstracted from the Treasury, or diverted from the use of the State, with intent to apply or appropriate it to his own use or benefit, would constitute embezzlement. The whole force of this objection, therefore, rests upon the assumption, that the Treasurer could perform no act by which the money could be thus abstracted or converted to his own use or benefit, unless at the time of the act he were personally present where the money happened to be. This assumption is so manifestly unfounded in law or fact as to require no comment.

We think the Court below should proceed to givejudg' ment upon the verdict against the defendant.

Martin Ch. J. and Manning J. concurred.

Campbell J.:

As I have come to a different conclusion from my brethren upon the sufficiency of the information, I shall very briefly refer to some of the other points raised, and then give my views upon the questions involved in that. And in this I shall in the main preserve the order of ■argument on the hearing.

It was urged as error that the Court refused to order a bill of particulars of the matters to be relied on by the prosecution. Had this been an indictment instead of an information, the question would have been a very important one. But as an information can only be filed after the party has had an opportunity for a preliminary examina' tion, and as that was had in this case, there can be no occasion for anything more. The examination must be filed- in Court, and no bill of particulars could be more complete. The introduction of any matter not covered by it would I think be good ground of objection and exception. It was so decided in Commonwealth v. Giles, 1 Gray, 466, although in that case the Court were inclined to think the original granting of particulars discretionary —a matter upon which I shall reserve my opinion until a case arises to call for it.

In regard to the account books and printed reports admitted, I think they were competent evidence. It was the legal duty of the defendant to see that all transactions were properly entered. By showing the existence of facts not entered, the prosecution certainly took one step towards making out their case. A neglect to have entries made was an omission of duty, or at least an apparent omission, which might or might not be criminal, but which certainly should go to the jury with the other facts. The printed report was also a document which he was by law bound to prepare, and which should have contained a true account. An omission to include any material item here, as in the books, would be a very pertinent fact for the jury. The objection that the original written document should have been produced, is of no force. State documents published by authority are always receivable, and are the most con» venient means of proving the contents of the originals which public policy requires to be kept in the office, and therefore renders it competent to prove by copies. Watrkins v. Holman's Lessee, 16 Pet. 25; Gregg v. Forsyth, 24 How. 179. If in any way variant from the original the variance- may undoubtedly be shown, and so might honest mistakes in that be explained.

The principal question, apart from the sufficiency of the information, is whether the statute was designed to. reach the State Treasurer. That he is an officer employed in the Treasury — in the ordinary acceptation of the term— is plain enough; but it is urged that, from his high position, and the nature of his powers, it is not presumable that any but his own employees were within the mischief to be redressed. The legislation of this State has been sufficiently reviewed by my brother Christiancy, and I shall not repeat his arguments. The ground of exemption from responsibility to the ordinary criminal process, chiefly relied on, was that an impeachment is the appropriate remedy for the official misconduct of high officers of State.

If our system continued to operate in all respects like that of England, perhaps this objection might prevail. But the House of Lords in trying impeachments is regarded as a Court of criminal jurisdiction, and not as a legislative body. It tries as a Court the impeachment which is presented by the Commons, as the most solemn grand inquest of the Kingdom: — 4 Bl. Com. 259; 2 Hale P. C. 150. The cause is tried substantially as in other courts, and judgment is given of fine or imprisonment as well as of disability: — 4 Bl. Com. 121. When Mr. Burke in Hastings’ case asserted that the House of Lords need not follow the rules of evidence received in the ordinary criminal corn'ts, he was overruled by the unanimous opinion of the Judges. And the judgment must also be such as is warranted by legal principles or precedents: — Western’s Com. 114. [There is therefore no occasion in England to resort to any further remedy for complete justice.

Our Constitution declares that “ judgment in case of impeachment shall not extend further than removal from office.” This would of course preclude any impeachment of a person out of office, and, if no other remedy were provided, would save a delinquent in office from any penal consequences. But in taking away the power of adequate punishment from the Senate, it is expressly declared that “ the party convicted shall be liable to punishment according to law:’’ Art. 12, §2. Instead therefore of being an argument against extending the statute over State officers,"the change fr'om the English system to our own renders it necessary to make some such provision, in order to accomplish, under our laAVS, what is done in England by impeachment alone. And, where the offender is out of office, no question can arise concerning the priority of prosecutions. Inasmuch as the language of our statute fairly covers the State Treasurer, I think there is no rule of public policy which can reasonably be supposed to exempt him from liability under it.

I am also of opinion that he would be liable under the statute for embezzling any moneys officially received by him, and that the moneys shown upon the trial to have been so received, were lawfully in his hands as State Treasurer, and in no other capacity. Had the information been good in other respects, I think the conviction would have been. But as I do not place my objections to it upon this question of a want of averment concerning the Treasury or its location, I shall not consider that particular objection as applicable to any of the counts. Some of them certainly are good, so far as that special objection goes.

Nor do I think the charge of the Court erroneous in directing the jury that the omission to charge the Treasurer in Ingham county with the moneys received would be evidence of embezzlement in that county; and that a denial of its receipt there would be evidence of embezzlement in that county. When the whole case is examined it is plain the jury could not have understood the charge as construing those acts into conclusive evidence of guilt, and could not have been misled by it in any way. The evident bearing of it was merely upon the venue. And I am very strongly inclined to the opinion, that where a public officer is bound to have his office in a certain place, and to keep his accounts there, an official embezzlement may always be charged in law to have been committed there — at least when it is of money unaccounted for. He is bound to account there, and until he fails to do so there can usually be no proof of embezzlement. The receipt of money may be abroad as well as at home, and yet no one could question his official responsibility to his own State on that account. Such offenses can often have no ascertainable locality; and must to a certain extent be governed by a constructive one.

I have referred to the principal questions arising on the merits, because they have necessarily been decided by my brethren, and I concur in the conclusions at which they have arrived on these points. And it is with much regret that I am compelled to differ upon a question of pleading. But as I deem the defect a substantial one, and depending on rules vital to the administration of justice, I can not concur in the result, although no injustice may have been done in this particular case by the violation of the rules. If the legal rights of a defendant have been denied, the facts are not material.

I do not think the information contains any such description of an offense that the defendant was legally called upon to meet it.

The law permitting informations to be filed, declares that “the offenses charged therein shall be stated with the same fullness and precision in matters of substance, as is required in indictments in like cases." “And in all cases a defendant or defendants shall have the same rights, as to all proceedings therein, as he or they would have, if prosecuted for the same offense upon indictment:” — L. 1859, p. 392.

It is not claimed by any one that we have any statute which would make an indictment good for the offense charged here, which would not have been good under the common law rules of pleading. I do not refer to mere matters of form, although they may be such as a party can rely on. Impeachments — which were the common law accusations for such offenses — were not required to be technical; and substantial accuracy is all that I shall consider. That was required in all proceedings and in all courts.

In order to ascertain the necessary elements of an indictment under this statute, we must first determine what constitutes the crime. No crime is defined by the statute itself. But it punishes certain classes of acts which we must look elsewhere to understand. It declares that “ If any officer, clerk, or other person employed in the Treasury of this State, or in the treasury of any county, or in any other public office within this state, shall commit any fraud or embezzlement therein, he shall be punished, <&c.

The term embezzlement does not seem to have had any technical meaning- at common law, and • has been used to signify every kind of stealing. But when used in statutes it has almost, if not quite, universally- been confined to the misappropriation of property, by those to whose care it has been confided as officers or agents. And in this sense it has no technical application — so far as I have been able to ascertain — to any specific kind of personal property. It is not possible under a statute so broad as ours to confine it to any variety out of the numerous valuables which aré entrusted to official custody. And there must be very many kinds of embezzlement which may be committed by a State Treasurer. Without undertaking to go into the subject further than is necessary to explain my views on this case, there are various ways in which he may embezzle public funds. He may, as he is claimed to have done in this case, receive moneys for the State and use them without accounting- for them. -Or he may draw from the Treasury moneys with which he stands charged, either by taking out cash on hand in his vaults with a design of converting it to his own use, or by drawing-money in his own favor, or by paying fraudulent accounts with the same unlawful design. The law, of necessity, assumes that whatever offense any one may be charged with may be falsely charged; and it likewise, in all-cases, presumes innocence until guilt is shown. And it is a further principle, not only of the common law but of the Constitution, that every person has a right to be informed of the nature of the accusation against him. This information is contained in the indictment or other instrument of accusation, which must set forth the offense, and to which all the evidence offered must be conformable. “ The charge must contain a certain description of the crime of which the defendant is accused, and a statement of the facts by which it is constituted, so as to identify the accusation, lest the grand jury should find a bill for one offense, and the defendant be put upon his trial in chief for another, without any authority. These precautions are also necessary in order that the defendant may know what crime he is called upon to answer, and may be enabled to claim any right or indulgence incident to the prosecution of some crimes; as treason, &c.; as well as that the jury may appear to be warranted in their conclusion of “guilty or not guilty” upon the premises to be delivered to them; and that the Court may see such a definite offense on record, that they may apply the judgment and the punishment which the law prescribes; they are also important “ in order that the defendant's conviction or acquittal may insure his subsequent protection, should he again be questioned on the same ground,,' and that he may be enabled to plead his previous conviction or acquittal of the same offense in bar of any subsequent proceedings - 1 Chit. Cr. L. 169, 170. And in laying down the general rules which determine the sufficiency of indictments, Mr. Chitty says, “the facts of the charge must, except in the two instances above mentioned, of proceedings against common scolds and barrators, be so set forth on tKe record,, that the defendant may clearly understand the charge he is called upon to answer, that the Court may know what judgment is to be pronounced upon conviction, and that posterity may Tcnow what law is to be derived from the record— 1 Chit. Cr. L. 231.

There is not a single count in the information which sets forth any facts describing, or constituting the offense which was sought to be proved against the defendant. He is charged with what is rather a conclusion of law than a fact. The charges as set forth are just as applicable to money received from the Central or Southern Railroad as from the Detroit and Milwaukee. They would apply as well to money received from State bonds, or taxes, or land sales, or any other of the numerous sources of State revenue, as from either. They would apply as well to money once accounted for, as to money never entered. In short, if the counts are good, there is not a single dollar ever received by the Treasurer which he may not under this information be convicted of embezzling. And yet every separate sum received from different sources,, and not accounted for, would be the ground of a separate offense.

It was urged with much force that it would be impossible to allege every fact with particularity where a defendant must have the only evidence of many matters done in secret. As for example, the precise kind of money stolen, the number and designation of the bills, and the like. How far this difficulty may exempt a prosecutor it is unnecessary now to say, for the defects here are not of that character. The law must in all cases require as. complete a description of the offense as its nature fairly admits of. It makes no great difference, perhaps, if a sum of one thousand dollars is received, of what particular' bills it is conqposed. A fund is not changed by the substitution of one kind of money for another. But if a person is charged with not accounting for money received, it is important for him to know from whom he is alleged to have received it, and for what purpose, because if innocent he may be prepared to overthrow the proof of any such payment.

There is no real difficulty in alleging every substantial fact. No indictment can be found except upon lawful evidence, and no defendant can be properly convicted except upon lawful evidence of every such fact. The chief evidence upon which this conviction was obtained consisted of proof that certain moneys had been paid by the Detroit - and Milwaukee Railway Company to the State Treasurer and never accounted for. And every embezzlement of this description must require similar , proof. Had the charge been designed to cover money accounted for and subsequently embezzled, the proof would have consisted of such admitted amount on hand, and a subsequent deficiency, or an actual subsequent taking or misappropriation; and such other facts as would show the felonious design. There is no rule of convenience or propriety which can make it improper to require a party to allege, in substance, all he would be absolutely bound to prove before he can recover a judgment or maintain a conviction. And every prosecutor must of necessity know before hand what charges he expects to rely on.

The statutes which have authorized general allegations in criminal pleading have only led to a necessity in many cases of supplying what they ought to allege by a bill of particulars; and they have been very justly condemned.. Over technicality is not to be favored, but substantial accuracy is required by both justice and convenience. As, an information must be as perfect as an indictment in all substantial particulars, and as there has been no statutory-relaxation of the common law which can apply to this, case, it must be determined by the-common law rules.

I think the information fatally defective, as not describing-any crime with reasonable certainty.

I am of opinion therefore that no judgment can properly be entered, and that judgment should therefore be arrested..

Judgment to be entered on the verdict.