Sanders v. State

105 So. 523, 141 Miss. 289, 1925 Miss. LEXIS 188

• Court: Mississippi Supreme Court
• Decided: October 19, 1925
• Docket: No. 24831.
• Status: Published

Opinions

Anderson, J.,

delivered the opinion of the court.

Appellant, W. P. Sanders, was indicted and convicted in the circuit court of Sunflower county, under section 1141, Code of 1906 (Hemingway’s Code, section 869), of embezzling', while superintendent of education of Sun-flowed county, seventeen thousand five hundred, sixty-seven dollars and sixty-three cents of the funds belonging to said county, and was sentenced to the penitentiary for a term of five years, from which judgment he prosecutes this appeal.

Appellant was superintendent of education of Sunflower county for the years of 1917 to 1924, inclusive. Under chapter 249: of the Laws of 1918, it was made his duty as county superintendent of education to collect all rents due for the lease of sixteenth section school lands, as well as the principal and interest due on all loans' made of such funds' belonging to his county, and account for the same to the board of supervisors; and it was made the duty of the board of supervisors to have him turn all such funds over to the county treasurer, taking proper vouchers therefor.'

Several assignments of error are made and argued by appellant. Only those we deem of sufficient merit will be considered. . In the discussion of each we will undertake to make the necessary statement of the case out of which the particular question involved arises. The indictment against appellant, leaving out the formal parts, is in this language:

“That W. P. Sanders, late of the county aforesaid, on the 8th day of September, 1924, with force and arms, in the county aforesaid and within the jurisdiction of the court, he being then and there a duly elected, qualified, and acting superintendent of education in and for Sunflower county, state of Mississippi, did then have in his possession, by virtue of his said office, money to the amount of the value of seventeen thousand five hundred sixty-seven dollars and sixty-three cents, the property of Sunflower county, Miss., which said money had theretofore come into his (the said W. P. Sanders’) hands and possession by virtue of Ms said office, and afterwards did then and there feloniously embezzle said above-described money, and did then and there unlawfully, fraudulently, and feloniously convert the same to his own use, against the peace and dignity of the state of Mississippi.”

Appellant interposed a demurrer to the indictment, which was overruled. That action of the trial court is assigned as error. The indictment charges that the alleged embezzlement was committed by appellant on September 8, 1924, while he was county superintendent of Sunflower county. Appellant contends that the court will take judicial notice of the fact that appellant was not county superintendent of education on that date, but that one C. D. Bookout at that time held the office. The evidence in the.case developed that, on the 8th day of September, 1924, appellant was not, in fact, superintend-ant of education of Sunflower county, that C. T. Book-out had been elected at his successor, and had taken office in January, 1924. It is true, as contended by appellant, that the courts take judicial notice of the beginning and ending of the terms of public officers. Stubbs v. State, 53 Miss. 437; State v. Smith, 87 Miss. 551, 40 So. 22. Appellant, however, does not cite any authority, and we know of none, holding that the courts take judicial notice as to what persons occupy the different offices of .the state at any given time. We hold that such a fact must be proven by evidence in the customary way, that the courts will not take judicial notice thereof, and that the indictment in that respect was sufficient.

Appellant contends that the indictment failed to charge the crime of embezzlement, because there is an absence in the. indictment of a charge that appellant embezzled the funds in question with intent to cheat and defraud Sunflower county. It is argued that there can be no embezzlement without such intent to cheat and defraud. Authorities are cited by appellant to the effect that, where an intent to cheat and defraud is necessary to constitute the crime charged , such intent must be alleged in the indictment. They have no application, however, to the crime of embezzlement under the statute here involved. The statute is in this language:

“If any state officer or any county officer, or any officer in any district or subdivision of- a county, or an officer of any city, town, or village, or a notary public, or any other person holding any public office or employment, or any executor, administrator, or guardians, or any trustee of an express trust, any master or- commissioner or receiver, or any attorney at law or solicitor, or any bank 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 unlawfully 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, or shall not, when lawfully required to turn 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 twenty years, or be fined not more than one thousand-dollars, or imprisoned in the county jail not more than one year. ’ ’

It will be observed that, in defining the crime of embezzlement, denounced by this statute, there is an absence of any provision in the statute that there must be a purpose on the part of the defendant to cheat and defraud. Either an unlawful conversion to his own use of the funds intrusted to the defendant or a failure on his part to turn over such funds to the person lawfully entitled thereto, constitutes the crime, regardless of any intent to cheat and defraud.

The court gives the following definition of the meaning of this statute in the Hemingway Case, 68 Miss. 371, 8 So. 317:

“It is at once a collection law and a penal statute. Its terms show unmistakably that it was designed to prevent unlawful (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.”

The court distinctly held in that case that it was not the fraudulent and felonious conversion that the statute was designed to prevent, but the unlawful conversion by public officers, trustees, etc. The unlawful conversion or the failure to turn over either constitutes the offense of embezzlement denounced by the statute. And this is true, regardless of any intent to cheat and defraud on the part of the defendant. See further, on this question, McInnis v. State, 97 Miss. 280, 52 So. 634.

It is contended by appellant that the indictment is insufficient because it charges the offense in substantially the language of the statute, that there are no sufficient words in the statute defining the offense charged, and therefore it was necessary for the extrinsic facts constituting the offense to be set out in the indictment. We are of the opinion that a complete answer to that contention is what the court said as to the purpose and meaning of this statute in the Hemingway case quoted above. 'Either simply an unlawful conversion or a failure to turn over is all that is necessary to constitute the crime. The indictment charges an unlawful conversion, not a conversion with intent to cheat and defraud, because, as held in the Hemingway case, that is not necessary.

Appellant contends that the demurrer to the indictment should have been sustained, because it fails to charge what specific funds were embezzled. The indictment charges that appellant had in his possession, by virtue of his office, money to the amount.of seventeen thousand five hundred sixty-seven dollars and sixty-three cents, “the property of Sunflower county, Miss.,” which came into his hands by virtue of his office of county su perintendent. It is argued that the indictment should have set out what specific funds were embezzled. It is provided by section 1436, Code of 1906 (section 1192, Hemingway’s Code), in substance, that in all indictments for larceny or embezzlement of money or evidences of debt it shall be sufficient to describe the property in general terms as — “ Money, bank notes, checks, bill of exchange, promissory notes and the like, and in an indictment for the embezzlement of funds by a treasurer, cashier or other fiduciary, it shall be sufficient to describe same as a balance of account and of a certain value.”

It is true the indictment in this case does not charge specifically that the seventeen thousand five hundred six ty-seven dollars and sixty-three cents, which appellant was charged with embezzling, constituted a balance of account as between him and Sunflower county, but it charges substantially the equivalent of that. The charge in the indictment is that that amount came into his hands by virtue of his office, which he unlawfully, fraudulently, and feloniously converted to his own use. It was not necessary to charge in the indictment the sources of the different funds in appellant’s custody as county superintendent, if, in fact, there were funds coming from different sources. It was sufficient to put him on notice of the nature and cause of the crime he was to meet to charge as the indictment did, that so much funds came into his hands by virtue of his office which he embezzled.

Appellant argues that the court committed a grievous error against him in overruling his motion for a bill of particulars. There is no authority of law for the furnishing of a bill of particulars in a criminal case. Section 763, Code of 1906 (Hemingway’s Code, section 546), authorizing the court under certain conditions to require a bill of particulars is confined to civil eases in the circuit courts, and has no application to criminal prosecutions. The indictment itself is the only bill of particulars required by law. And, as we have stated, the indictment in this case sets out the crime charged with sufficient particularity to put appellant on notice of the nature and cause of the offense charged against him.

Appellant contends that the court erred in giving- instruction No. 4 for the state in this language:

“The court instructs the jury for the state that in a prosecution for embezzlement it is not necessary to make out the case of embezzlement for the state to prove that the defendant unlawfully, willfully, and feloniously converted the exact amount of money set out in the indictment, and that, if you believe from the evidence in this case beyond every reasonable doubt that the defendant, W. P. Sanders, while serving as county superintendent of education of Sunflower county, Miss., unlawfully, willfully, and feloniously embezzled the amount of money set out in the indictment, or any amount in excess of twenty-five dollars, then he is guilty as charged, and it will be your sworn duty to so find.”

It is argued that the instruction is defective, because the jury were thereby directed to find appellant guilty, regardless of whether an intent to cheat and defraud was shown by the evidence. This question has been passed on in determining the sufficiency of the indictment. The indictment charges that appellant unlawfully, feloniously, and fraudulently converted the funds to his own use. That is sufficient. The state was not required to go beyond the averments of the indictment with its proof.

Appellant’s motion for a continuance, was overruled. He assigns this as error. The motion was based on tho theory that the indictment against appellant failed to sufficiently inform him of the nature and cause of the charge against him and that appellant was entitled to time in which to investigate the correctness of the audit handed his attorney before going into the trial, which audit the state largely relied on for conviction. The granting of continuances is so largely within the discretion of the trial court that a refusal to grant a continuance is very rarely a ground for reversal. There must be an abuse of discretion on the part of the trial court to work a reversal. In view of the developments on the trial of this case, it is apparent that the court committed no error in overruling appellant’s motion to continue. Appellant, as a witness in his own behalf, admitted substantially the truth of every item of the audit charged against him,-as well as the showing therein that he had failed to report a large part of the sixteehth section funds coming 'into his hands to the board of supervisors, and pay same into the county treasury as required by the .statute. The audit therefore contained no surprises to appellant. H.e practically confessed the truth of it, and undertook to justify his conduct under the law in failing to comply with the statute, as will be shown hereafter in considering another ground of alleged error.

Appellant urges that the court should have directed a verdict of not guilty as requested by him; that this instruction should have been given, among other reasons, because the indictment charged the crime to have been committed on September 8, 1921, while the- evidence showed that at that time appellant had ceased to be county superintendent, and that the misappropriation of the funds took place during his term of office, which expired with the year 1923. There was in fact, therefore, a variance in that respect between the date of the offense as charged in the indictment and the date shown by the evidence. This variance, however, was without any harm whatever to appellant. lie was not thereby deceived or misled in any manner to his hurt. Before going into the trial he was handed by the district attorney, as stated before, a complete audit made by an expert 'accountant, and introduced in evidence on the trial, showing every debit and credit of the sixteenth section funds which in any manner had any bearing whatever on appellant’s guilt. He knew by that audit that he was expected to meet a charge of embezzlement of these funds by him during’ his term of office.; and furthermore he was informed of every item of these funds which the state would undertake to prove had come into his hands, the date received by him, as well as all items and their dates accounted for by him according to the statute. Furthermore, as above stated, appellant, as a witness in his own behalf, practically admitted the truth of that audit, and undertook to justify his course in failing to report these funds to the board of supervisors and turn them in to the county treasurer as required by law. It is not every variance between an indictment and the evidence that is harmful to a defendant. If it develops in the evidence that the defendant is informed of exactly the time of the commission of the alleged offense, and prepares his defense accordingly, a variance between the time alleged in the indictment and the time shown by the* evidence is without harm to the defendant. That was' the case here.

It is argued by appellant that he was entitled to a directed verdict of not guilty, because the evidence showed that he had not in truth and in fact appropriated these sixteenth section funds to his own use. The testimony on this question was principally by appellant himself. In brief, he stated substantially these facts: That it was true that as to a large amount of these sixteenth section funds, coming into his custody during his two terms as county superintendent, he did not comply with the statute, in that he failed to report same to the board of supervisors and turn them over on the order of the board to the county treasurer; that nevertheless he had not appropriated these funds to his own use; that instead he had placed them to his individual credit in one or more banks, and drawn them out on his individual checks in payment of teachers’ salaries and other expenses of the public schools of Sunflower county to which such funds are devoted by law; that, in other words, he had accomplished the same result that would have been accomplished if the funds had been reported to the board of supervisors and turned into the county treasury by him on the order of the board. Appellant admitted that he had kept no books and records covering the receipt and disbursement of these funds, and that, when he went out of office, he did not turn over to his successor any of these funds. In his testimony he undertook to go into details of the different amounts he had paid out of these funds for the benefit of the public schools of the county. Conceding alone, for the sake of argument, the soundness of appellant’s position in that respect, still in many respects his testimony was so indefinite and uncertain that it was a question for the jury whether he had disbursed the funds as he contended had been done. In at least two instructions given for appellant the jury were told, in substance, that, if they believed from the evidence that appellant paid out these funds which he had failed to report and pay into the county treasury as required by statute, for the benefit of the public schools of Sunflower county, they should find appellant not guilty, or, if they had a reasonable doubt of that fact, they would so find. Without deciding the question as to whether these instructions should have been given, it is apparent that they were most favorable to appellant. By them his good faith as well as the question whether he had appropriated the funds to his own use were squarely submitted to the jury, - and the jury found against him. In other words, the jury found that he appropriated and used a part of these funds for his own personal benefit.

We do not deem it necessary to discuss the other errors assigned. It is apparent they have no merit. So far as this record shows, appellant has had a fair and impartial trial according to the evidence and the law of the land. A jury of his county has found him guilty, and in our judgment that finding was not influenced by any error which may have been committed during the trial of the case.

Affirmed