The opinion of the Court was delivered by
Watkixs, J.
The defendant is proceeded against by information, under Sec. 903 of the Revised Statutes, on the charge of embezzlement of public money, property of the State, while he was Secretary of State; and from a verdict of guilty and sentence by the court to fine and imprisonment at hard labor, he has appealed, and rests his claim to relief upon several bills of exception taken to the rulings of the trial judge, refusing to prant a continuance to obtain the attendance of absent witnesses; declining to give him a new trial; refusing to give to the jury certain special charges, and refusing to arrest the judgment.
I.
Counsel for the accused sought to arrest the j udgment and sentence of the court on the ground that Sec. 903 ct sequentes of the Revised Statutes, under which this information was found, had been repealed by See. 88 of Act 68 of 1870, and Sec. 90 of Act 42 of 1871, both of which provide for the prosecution of such cases by indictment only, [1084]*1084and that he cannot be legally punished under verdict and sentence on-information, as demanded.
/,sWe are fully satisfied, from a careful examination of those acts, and comparisons made with the provisions, of the sections of the Revised Statutes referred to, that there is no inconsistency between them, and that the latter is not repealed; As this prosecution was instituted under those sections, the provisions of ihose acts are not necessarily inyolved. The Constitution declares that prosecutions may be by indictment or information. Art. 5.
II.
.The defendant tendered a plea of prescription of one year, and demanded his discharge from prosecution on that ground, without avail, apd. renews that resistance here.
The information charges that the defendant did, on the 22d of May, 1884, then and there being Secretary of State, ombezzle the sum of $.4251 85, money belonging to the State, “which money he, the said Will. A. Strong, had theretofore, to-wit :• From the 15th day of August, 1882, to the 5th day of May, 1884, both inclusive, received, and been entrusted with in his said official capacity, and under color and by virtue of his said office of Secretary of .State, as the proceeds of election tickets sold by him, and for his account, under the provisions of Act 101 of 1882, which election tickets had been paid for with the money of the State, drawn from the State Treasury, out of the appropriation made for election purposes, under the appropriation bill of 1882, Act 63 of said year, on Auditor’s warrants, issued on the orders and vouchers of said Strong, from the 6th day of September, 1882, to the 28th of April, 1884, both inclusive ; ..which money, to-wit, the sum of $4251 85, the property of the State of Louisiana, as aforesaid, he, the said Will. A. Strong, has failed to pay, or account for to the State, notwithstanding due and legal demand made upon him therefor; and which money the said Strong did then and there, to-wit; the 22d day of May, 1884, feloniously, wrongfully, fraudulently and corruptly use, dispose of, conceal, convert to his own use, and embezzle.”
. :The information contains an averment to the effect that it was presented and filed within one year next after the offense had been made known to a public officer having power to direct a prosecution.
As thus presented, the evidence of prescription vel non was properly submitted to the jury.
It was a proper issue for them to try. It was a question of fact appertaining to the merits of the controversy, which could be passed upon [1085]*1085by the jury alone. 36 Ann. 975, State vs. Victor; 7 Ann. 255, State vs. Foster.
During the progress of the trial it became an important question in the case whether the. Auditor of Public Accounts was authorized to direct prosecutions in. the name of the State, and the defendant’s counsel requested of the trial judge the following special charge to the jury, viz:
. “That the Auditor of Public Accounts of the State of Louisiana was, as public officer, authorized by law to direct prosecutions in the name of the- State of Louisiana, for all official delinquencies against all the debtors of the State, 'in cases such as the one on trial; therefore, if you find from the evidence that the defendant did embezzle the public moneys of the State of Louisiana, as is alleged in the bill .of information, then, and in that event, if you find from the evidence that such official delinquency was made known to the Auditor of Public Accounts for more than twelve months after the expiration of defendant’s term of office as Secretary of State, and for more thau twelve months before the information was presented and filed in this case, the .defendant cannot be punished therefor, and it is your duty to acquit .him.’’
The trial judge declined to give this in his charge to the jury on the ground that the “ Auditor is authorized to direct prosecutions by civil action alone; and that no one but the Attorney G-eneral, District Attorney, or magistrate, with criminal jurisdiction, is authorized to direct criminal prosecutions, like, the one at bar.”
This ruling was manifestly erroneous.
The duties of the Auditor of Public Accounts are specifically enumerated in sections of the Revised Statutes, 172 et sequentes; and 176 declares, in express terms, that “ it shall be his duty * * * to direct prosecutions in the name of the State for all official delinquencies in relation to the assessment, collection and payment of the revenue; against all persons who, by any means, become possessed of public-money or property, and fail to pay, or deliver the same ; and against all debtors of the State.”
The language herein employed is quite similar to that of the Statute in reference to the prescription of offenses. It declares that “no person shall be prosecuted, tried or punished for any offense, wilful murder, etc., excepted, unless the indictment or presentment for the same be found or exhibited within one year next after the offense shall have been made known to a public officer having the power to direct the investigation or prosecution,” R. S., Sec. 986.
[1086]*1086Not only does the statute quoted confer the power on the Auditor, but it makes it, unmistakably, his “ duty ” to “ direct prosecutions in the name of the State,” in each of the three following cases, viz:
1. “ For all official delinquencies in relation to the assessment, collection and payment of the revenue.'"
2. “ Against all persons who, by any means, become possessed of public money or property, and fail to pay or deliver the same.”
3. “ Against all debtors of the .State.”
The charge against the defendant comes within the terms of paragraph second, as he is alleged to have embezzled public money, property of the State, which he had received and been, entrusted with, as Secretary of State — same being the proceeds of the salo of election tickets, which had been paid for with the money of the State, drawn from the State Treasury, on warrants issued by the Auditor, and against an appropriation made by the Legislature for that purpose.
Indeed, upon the trial of persons thus charged, the- books of the Auditor are not only competent
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The opinion of the Court was delivered by
Watkixs, J.
The defendant is proceeded against by information, under Sec. 903 of the Revised Statutes, on the charge of embezzlement of public money, property of the State, while he was Secretary of State; and from a verdict of guilty and sentence by the court to fine and imprisonment at hard labor, he has appealed, and rests his claim to relief upon several bills of exception taken to the rulings of the trial judge, refusing to prant a continuance to obtain the attendance of absent witnesses; declining to give him a new trial; refusing to give to the jury certain special charges, and refusing to arrest the judgment.
I.
Counsel for the accused sought to arrest the j udgment and sentence of the court on the ground that Sec. 903 ct sequentes of the Revised Statutes, under which this information was found, had been repealed by See. 88 of Act 68 of 1870, and Sec. 90 of Act 42 of 1871, both of which provide for the prosecution of such cases by indictment only, [1084]*1084and that he cannot be legally punished under verdict and sentence on-information, as demanded.
/,sWe are fully satisfied, from a careful examination of those acts, and comparisons made with the provisions, of the sections of the Revised Statutes referred to, that there is no inconsistency between them, and that the latter is not repealed; As this prosecution was instituted under those sections, the provisions of ihose acts are not necessarily inyolved. The Constitution declares that prosecutions may be by indictment or information. Art. 5.
II.
.The defendant tendered a plea of prescription of one year, and demanded his discharge from prosecution on that ground, without avail, apd. renews that resistance here.
The information charges that the defendant did, on the 22d of May, 1884, then and there being Secretary of State, ombezzle the sum of $.4251 85, money belonging to the State, “which money he, the said Will. A. Strong, had theretofore, to-wit :• From the 15th day of August, 1882, to the 5th day of May, 1884, both inclusive, received, and been entrusted with in his said official capacity, and under color and by virtue of his said office of Secretary of .State, as the proceeds of election tickets sold by him, and for his account, under the provisions of Act 101 of 1882, which election tickets had been paid for with the money of the State, drawn from the State Treasury, out of the appropriation made for election purposes, under the appropriation bill of 1882, Act 63 of said year, on Auditor’s warrants, issued on the orders and vouchers of said Strong, from the 6th day of September, 1882, to the 28th of April, 1884, both inclusive ; ..which money, to-wit, the sum of $4251 85, the property of the State of Louisiana, as aforesaid, he, the said Will. A. Strong, has failed to pay, or account for to the State, notwithstanding due and legal demand made upon him therefor; and which money the said Strong did then and there, to-wit; the 22d day of May, 1884, feloniously, wrongfully, fraudulently and corruptly use, dispose of, conceal, convert to his own use, and embezzle.”
. :The information contains an averment to the effect that it was presented and filed within one year next after the offense had been made known to a public officer having power to direct a prosecution.
As thus presented, the evidence of prescription vel non was properly submitted to the jury.
It was a proper issue for them to try. It was a question of fact appertaining to the merits of the controversy, which could be passed upon [1085]*1085by the jury alone. 36 Ann. 975, State vs. Victor; 7 Ann. 255, State vs. Foster.
During the progress of the trial it became an important question in the case whether the. Auditor of Public Accounts was authorized to direct prosecutions in. the name of the State, and the defendant’s counsel requested of the trial judge the following special charge to the jury, viz:
. “That the Auditor of Public Accounts of the State of Louisiana was, as public officer, authorized by law to direct prosecutions in the name of the- State of Louisiana, for all official delinquencies against all the debtors of the State, 'in cases such as the one on trial; therefore, if you find from the evidence that the defendant did embezzle the public moneys of the State of Louisiana, as is alleged in the bill .of information, then, and in that event, if you find from the evidence that such official delinquency was made known to the Auditor of Public Accounts for more than twelve months after the expiration of defendant’s term of office as Secretary of State, and for more thau twelve months before the information was presented and filed in this case, the .defendant cannot be punished therefor, and it is your duty to acquit .him.’’
The trial judge declined to give this in his charge to the jury on the ground that the “ Auditor is authorized to direct prosecutions by civil action alone; and that no one but the Attorney G-eneral, District Attorney, or magistrate, with criminal jurisdiction, is authorized to direct criminal prosecutions, like, the one at bar.”
This ruling was manifestly erroneous.
The duties of the Auditor of Public Accounts are specifically enumerated in sections of the Revised Statutes, 172 et sequentes; and 176 declares, in express terms, that “ it shall be his duty * * * to direct prosecutions in the name of the State for all official delinquencies in relation to the assessment, collection and payment of the revenue; against all persons who, by any means, become possessed of public-money or property, and fail to pay, or deliver the same ; and against all debtors of the State.”
The language herein employed is quite similar to that of the Statute in reference to the prescription of offenses. It declares that “no person shall be prosecuted, tried or punished for any offense, wilful murder, etc., excepted, unless the indictment or presentment for the same be found or exhibited within one year next after the offense shall have been made known to a public officer having the power to direct the investigation or prosecution,” R. S., Sec. 986.
[1086]*1086Not only does the statute quoted confer the power on the Auditor, but it makes it, unmistakably, his “ duty ” to “ direct prosecutions in the name of the State,” in each of the three following cases, viz:
1. “ For all official delinquencies in relation to the assessment, collection and payment of the revenue.'"
2. “ Against all persons who, by any means, become possessed of public money or property, and fail to pay or deliver the same.”
3. “ Against all debtors of the .State.”
The charge against the defendant comes within the terms of paragraph second, as he is alleged to have embezzled public money, property of the State, which he had received and been, entrusted with, as Secretary of State — same being the proceeds of the salo of election tickets, which had been paid for with the money of the State, drawn from the State Treasury, on warrants issued by the Auditor, and against an appropriation made by the Legislature for that purpose.
Indeed, upon the trial of persons thus charged, the- books of the Auditor are not only competent evidence, but the statute of 1871 declares that “ upon the trial of any such officer ffir embezzling public money, under the provisions of this act, it shall be sufficient evidence for the purpose of showing a balance against such officer or person, to produce a transcript from the boohs of the Auditor of Public Accounts, and proof of the refusal of any such officer, or person, whether in or out of office, to pay,” etc. Sec. 90 Act 42 of 1871.
By the terms of Sec. 91 of Act 68 of 1870 it is made the duty of the Auditor to cause a thorough examination to be made as often as once in every six months, “of all tho receipts and business, books and vouchers of each collector and each receiver * * and every other State officer, or agent, having an office in which business of the Stato is attended to, done or performed,” etc.
By the terms of Sec. 92 of Act 42 of 1871, it is provided that if, iu the course of any such examination, any evidence of embezzlement, or breach of trust is discovered on the part of any officer, or persons whose accounts have been thus examined, the same shall be made known to the Auditor, “and it shall be the duty of the said Auditor to forthwith cause the arrest of collector, receiver, or agent, or person, or persons, Whose official functions shall be suspended,” etc.
We are at a loss to conceive of any room -left, in the face of such provisions, for any argument in support of the theory that the Auditor is not, in the eye of the law, a public officer, “ having the power .to direct an investigation, or prosecution ” within the intendment of Sec, 986 of ike Rtwised Statutes,
[1087]*1087The quoted-provisions of those statutes deal with the same subject-matter as that treated of in R. S., Sec. 903 el scquentcs, and are entirely consistent, therewith.
Wo aro of the opinion that the charge requested was a proper one, and that it was error on tho part of the trial judge to have refused it. This was evidently to the prejudice of the accused, and ho is therefore entitled to a new trial.
It is, therefore, ordered, adjudged and decreed, that tho verdict of the jury be set aside, tho sentence of tho court arrested, and tho causo remanded to the lower court for further proceedings, according to law and the views herein expressed.
■Mr. Justice Fenner dissents, and flies a separate opinion.