State v. Ensley , 177 Ind. 483 ( 1912 )

Morris, C. J.

Appellee, a former treasurer of Marion county, was charged by indictment with the crime of embezzlement, under §2284 Burns 1908, Acts 1905 p. 584, §391.

' The indictment, omitting caption and signature, is as follows: “The grand jurors for the connty of Marion and State of Indiana, upon their oaths present that on the — day of November, 1904, Oliver P. Ensley was duly elected to the office of treasurer of the connty of Marion in the State of Indiana for the term of two years, which said term commenced on the 1st day of January, 1906, and ended on the 31st day of December, 1907. That said Oliver P. Ensley was duly commissioned, gave bond and duly qualified as such treasurer of said county and entered upon the discharge of the duties of the office of treasurer of said county on the 1st day of January, 1906, and was then and thereafter the duly elected, qualified and acting treasurer of said county and discharged the duties of treasurer of said county until the 31st day of December, 1907, at which said date the said term of office of said Oliver P. Ensley as such treasurer of Marion county expired. That on the — day of November, 1906, one Edward J. Robison was duly elected to said office of treasurer of said county of Marion for the term of two years, which said term commenced on the 1st day of January, 1908. That said Edward J. Robison was duly commissioned, and on the 24th day of December, 1907, gave bond, duly qualified and on the 1st day of January, 1908, duly entered upon the discharge of the duties of said office of treasurer of Marion county as the successor of said Oliver P. Ensley, the then incumbent of said office of treasurer of said county. That at the time of the expiration of the said term of office of the said Oliver P. Ensley as such treasurer, the said Oliver P. Ensley then and there surrendered' said office of treasurer to the said Edward J. Robison and at the time of the surrender of said office of treasurer as aforesaid the said Oliver P. Ensley then and there had in his hands as such treasurer of said county the sum of $20,000 in money of the value of $20,000, which said sum of money had come into the hands of said Oliver P. Ensley as such treasurer by virtue of his said office of treasurer and which sum was then and there due from the said Oliver P. Ensley as treasurer as aforesaid to his successor in office, the said Edward J. Robison as treasurer of said county as aforesaid; that the said Oliver P. Ensley did then and there unlawfully, feloniously and fraudulently fail, neglect and refuse to pay over said $20,000 or any part thereof to the said Edward J. Robison although said Edward J. Robison was entitled to receive the same and was ready and willing to receive the same, contrary to the form of the statute in such ease made and provided, and against the peace and dignity of the State of Indiana.”

The defendant filed a motion to quash the indictment, for the alleged reasons that it did not charge an offense, because it failed to aver a demand, and because the ownership of the money was not sufficiently averred. The lower court sustained the motion to quash, because, as we are informed by appellee’s brief, no demand was averred. This appeal, prosecuted by the State, is based on the alleged error of the court in sustaining this motion.

The indictment was returned under §391 of an act concerning public offenses, approved March 10,1905 (Acts 1905 p. 584, §2284 Bums 1908). This was a substantial reenactment of an act approved March 5, 1883 (Acts 1883 p. 106, §2021 Burns 1901). Section 391 of the act of 1905, supra, is as follows: “It shall be the duty of each clerk of the circuit court, sheriff and treasurer of each county in this State, and of every other county, state, township, city or town officer in this State receiving money in his official capacity, at the expiration of his term of office, to pay over to his successor in office all moneys of every description, to whomsoever due, remaining in his hands at the expiration of such term, taking the receipt of such successor therefor; and such successor and his sureties shall be liable therefor on his official bond, as if the same had been originally collected by him; and any clerk, treasurer, sheriff or other such county, state, township, city or town officer, so failing to so pay over such moneys, and any such successor to any clerk, treasurer, sheriff or other such officer who shall fail to' pay over any such moneys to parties entitled to receive the same, when called on to do so, shall be deemed guilty of embezzlement, and, on conviction, shall be fined in any sum not exceeding one thousand dollars, and be imprisoned in the state prison not less than one year nor more than five years.”

It is claimed by appellee that the italicized phrase, “when called on to do so,” qualifies not only the immediately preceding clause, “and any such successor to any * * * treasurer * * * who shall fail to pay over any such moneys to parties entitled to receive the same,” but also the clause preceding the latter, which reads, “and any * * * treasurer * * * so failing to so pay over such money,” and, therefore, no offense is charged, unless it is averred in the indictment that the defendant failed to pay to his successor after he was “called on to do so.”

On the other hand, the Attorney-General contends that the italicized phrase qualifies only the clause immediately preceding it, and the statute defines two offenses, viz., the failure of a retiring officer to pay to his successor, at the expiration of his term, money then remaining in his hands, and the failure of the successor to pay over any such moneys to parties entitled thereto, on demand, or “when called on to do so.”

It is admitted by counsel for appellee that the treasurer’s failure to pay to his successor money remaining in his hands, at the expiration of his term, renders him liable on his bond without demand. Foster v. State, ex rel. (1899), 22 Ind. App. 471, 53 N. E. 1095; Boyd v. State, ex rel. (1908), 42 Ind. App. 243, 84 N. E. 350. These cases hold that the law itself, not the bringing of the suit, makes the demand.

Counsel also admit that the reenactment of the act of 1905, supra, did not substantially change the statute as originally enacted in 1883, so far as treasurers are concerned. On this subject they say: “By §391 of this act [Acts 1905 p. 584, §2284 Burns 1908], the act of 1883 [Acts 1883 p. 106, §2021 Burns 1901] was revived and reenacted, the principal change made by the revision was to make all officers liable to the penalty, instead of only the clerks, sheriffs and treasurers. As to county treasurers failing to pay over moneys, there was no substantial change.” (Italics ours throughout opinion.)

In our opinion, aside from broadening the scope of the act so as to apply to all officers, the slight changes made were such only as to evidence the adoption by the legislature of the construction of the act given it by this court in State v. Wells (1887), 112 Ind. 237, 13 N. E. 722.

In State v. Mason (1886), 108 Ind. 48, 8 N. E. 716, the indictment was returned in May, 1885, the treasurer’s term of office expired in November, 1882, and demand was made on the treasurer in July, 1883. In holding that the prosecution was barred by the two-year statute of limitations, this court said: “The statute of limitations began to run when Mason failed to pay over the money in his hands to his successor in office, and the alleged subsequent demands and refusals did not take any of the counts out of the operation of that statute.” 12 Oyc. 255.

1. 2. 3. 4. Of course, the General Assembly may make the commission of the offense to depend on the condition precedent of a failure to comply with a demand. The question here is whether or not the statute expressly, or by necessary implication, requires it. In ascertaining the intent of the act, courts will look to the letter thereof, to the mischief aimed at, to other statutes, and to the common law. State Board, etc., v. Holliday (1898), 150 Ind. 216, 49 N. E. 14, 42 L. R. A. 826; City of New Albany v. Stier (1905), 34 Ind. App. 615, 72 N. E. 275. Another familiar rule of statutory construction, thoroughly settled, is that where a statute has been construed by the courts of a state, and is thereafter substantially reenacted, the legislature thereby adopts such construction, unless the contrary is clearly shown by the language of the act. Board, etc., v. Conner (1900), 155 Ind. 484, 58 N. E. 828; Hilliker v. Citizens St. R. Co. (1899), 152 Ind. 86, 52 N. E. 607; State, ex rel., v. Swope (1855), 7 Ind. 91; Dill v. Fraze (1907), 169 Ind. 53, 79 N. E. 971; McIntyre v. State (1908), 170 Ind. 363, 83 N. E. 1005; Rupel v. Ohio Oil Co. (1909), 172 Ind. 300, 88 N. E. 508; Strange v. Board, etc. (1910), 173 Ind. 640, 91 N. E. 242; Smith v. Biesiada (1910), 174 Ind. 134, 90 N. E. 1009. And where a statute is adopted from a foreign state, the construction thereof by the courts of such state, is followed. Bowman v. Conn (1856), 8 Ind. 58; City of Laporte v. Gamewell, etc., Tel. Co. (1896), 146 Ind. 466, 45 N. E. 588, 35 L. R. A. 686, 58 Am. St. 359; Robertson v. Ford (1905), 164 Ind. 538, 74 N. E. 1. Embezzlement is the fraudulent conversion of property by a person to whom it has been entrusted. State v. Winstandley (1900), 155 Ind. 290, 58 N. E. 71. There must be a conversion, but this may be either actual or constructive.

In State v. Wells (1887), 112 Ind. 237, 13 N. E. 722, this court construed this statute, and, in the course of its opinion, on page 240 it said: “The act of 1883 has relation to the duties of officers at the expiration of their terms of office. That act affirmatively requires all county clerks, sheriffs and treasurers, and every other officer, whether he be a state, county or municipal officer, who receives money in his official capacity, to pay over all such moneys as may remain in his hands at the expiration of his term, no matter to whom it may belong, to his successor in office, and take his receipt therefor. It also makes any county clerk, sheriff, or treasurer, who fails to pay over to his successor as required, guilty of embezzlement, and it makes the successor guilty of the like offense, in case he fails or refuses, when called upon to do so, to pay the money thus received by him to the persons entitled to it. Under this latter act clerks, sheriffs and treasurers are not liable to punishment for failing or refusing to pay money, or deliver property, or choses in action, to the persons to whom they may belong, at any intermediate period before the expiration of their terms, except it be money turned over to them by their predecessors in office. It may be supposed that the legislature was cognizant of the fact that county clerks, sheriffs and treasurers become the custodians of funds and property, by virtue of their respective offices, which belong to individuals, and it may have been supposed that instances might arise, or probably have arisen, where officers of the class mentioned would retain such moneys or property in their own possession at the expiration of their terms, instead of turning it over to their successors in office. Thus it would follow that moneys and property which should he kept in the custody and under the protection of a public officer, in a public office, would be subject to the vicissitudes and perils of being-in the custody and use of private individuals who might or might not be readily accessible to the persons entitled to it. This was the mischief at which the act of March 5,1883, was aimed. The effect and purpose of that act was to make it the duty of all officers to turn over to their successors all moneys remaining in their hands at the expiration of their terms, and to punish the officers therein named for failing to comply with their duties, as prescribed by that act.”

5. In the above case, this court was called on to determine whether the act of March 5, 1883 (Acts 1883 p. 106, §2021 Burns 1901) repealed, by implication, §1943 R. S. 1881, Acts 1881 (s. s.) p. 174, and to decide that question it was necessary to determine the subject-matter, the offenses denounced, and the penalties prescribed in both acts-. The conclusion reached by the court was that the act of 1883, supra, affirmatively requires a county treasurer, at the expiration of his term of office, to pay over to his successor all money remaining in his hands, which was received by him in his official capacity, no matter to whom it may belong, and it makes such officer, failing so to pay over such funds to his successor, guilty of embezzlement; and it makes the successor guilty of the like offense in case he fails or refuses, when called on to do so, to pay to the persons thereto entitled the funds received by him from his predecessor.

This decision was never overruled, and the reenactment of. the statute in 1905 (Acts 1905 p. 584, §2284 Burns 1908), adopted the construction given it by this court in that case.

In view of the two offenses created by the act, and the intention of the legislature in enacting the law, as determined by this court in the above ease, is a demand necessary?

6. The law does not require the doing of useless things. Where a statute is ambiguous, it will, if possible, be given such construction as will prevent absurdity or injustice. Indianapolis Union R. Co. v. Waddington (1907), 169 Ind. 448, 82 N. E. 1030; Mayor, etc., v. Weems (1854), 5 Ind. 547; State v. Sopher (1901), 157 Ind. 360, 61 N. E. 785; Haggerty v. Wagner (1897), 148 Ind. 625, 48 N. E. 366, 39 L. R. A. 384; Sutherland, Stat. Constr. §324.

7. It may be conceded that the phrase “when called on to do so” is the equivalent of the requirement of a demand. In considering the duty enjoined on the successor, to pay the funds received from his predecessor to the persons entitled thereto, the propriety, and even the necessity of a demand is apparent. The law requires the county treasurer to receive all money coming to the county, and to disburse it on the proper orders issued and attested by the auditor, but the law enjoins no duty on the treasurer to pay such orders until presented to him at his office provided for him by the board of commissioners. 1 R. S. 1852 p. 499, §§9476, 9482-9484 Burns 1908, §§5912, 5918-5920 R. S. 1881. Consequently, before the person entitled to money from the county treasury has presented for payment a proper order attested by the auditor, the treasurer has violated no duty prescribed by the law, and he could not be guilty of embezzlement of such funds, until he should fail, after presentation of the order and demand for its payment.

8. But here, the offense charged is the felonious failure of the treasurer to turn over to his successor public funds to which the successor is entitled. The duty to pay them, at a particular time, to a particular person, is expressly set forth in the statute. The statute itself demands the performance of the duty, and fixes a penalty for the felonious failure to do it. A demand by the successor could in noway add to or affect the retiring officer’s duties, and, so far as carrying into effect the purpose of the legislature in enacting the law is concerned, would be a mere idle ceremony, because such demand would be merely a recital of the terms of the statute. But much more is involved in this interpretation of the statute than the doing of a needless act. The purpose of the legislature in enacting the statute, as set forth in the portion of the opinion above quoted, in State v. Wells, supra, would be almost entirely defeated by adopting the theory of appellee’s counsel. Under such contention, the retiring officer might fraudulently retain public funds for an indefinite length of time. The shortage might never be discovered. Even when discovered, by expert examination, or otherwise, no duty to make a demand is enjoined on the successor, and hence he would incur no penalty by remaining silent. It would be absurd to impute to the legislature the intention to make the application of the act to depend on the uncontrolled will of the successor. But this would not be all. On such theory, a retiring officer might intentionally and fraudulently convert public funds to his own use, use them until some indefinite time when his defalcation might be discovered, and then, if his successor should see fit to make a demand, all he would have to do would be to make payment in a reasonable time thereafter, and thus escape the penalty of the statute. On this theory, the only risk assumed by a retiring officer, in fraudulently converting to his own use all the public funds in his hands at the termination of his term of office, would be his lack of financial ability to meet the demand when made, and the act could never practically apply to the felonious defalcations of officers except when such officers might be so unfortunate as to be insolvent. Where the relief sought by the enactment of the law is, as here, the better safe-guarding of public funds against the conversion thereof by dishonest officials, it would be absurd to impute to the lawmaking body the further intention of making public funds the prey of such officers.

In the case of State v. Leonard (1909), 56 Wash. 83, 105 Pac. 163, the supreme court of Washington, in passing on a similar question, used this language: “The appellant’s third proposition is that, where the moneys are collected in a fiduciary capacity, proof of demand by one authorized to receive payment of such funds is necessary before there can be a conviction for criminal conversion. The appellant has cited no authorities to sustain this proposition, nor do we think that any can be found. It would be a direct encouragement to laxity in official duty, if not to absolute dishonesty, to put any such construction upon the law. Under such construction the officer could retain money that came into his possession for an indefinite length of time. If after-wards, by experting the books or from any investigation, it was found that such money had been retained, all he would have to do would be to pay the same upon demand made. If the law were to be construed in this manner, the public funds would become a prey to plunderers and dishonest officers.”

7. 8. Considering the statute as a whole, and the position therein of the phrase in controversy, and considering especially the construction of the statute in State v. Wells, supra, which is binding on the court because of the reenactment, we are of the opinion that the phrase “when called on to do so” applies only to the offense committed by -a successor in feloniously failing to pay to persons entitled thereto money received by him from his prede cessor ; and where, as here, the offense charged is the felonious failure of the officer to pay over to his successor, at the expiration of his term, public funds remaining in his hands, the offense is complete without any demand, and none need be averred.

Counsel for appellee, in their brief, cite State v. Hebel (1880), 72 Ind. 861, as authority that a previous demand is necessary. That case arose under §1943 R. S. 1881, Acts 1881 (s. s.) p. 174, which, in express terms required a demand. Counsel also cite State v. Adamson (1888), 114 Ind. 216, 16 N. E. 181, on the same theory. That case involved a charge against a defaulting administrator under §1952 R. S. 1881, §2293 Burns 1908, which also expressly required a demand. The correctness of both decisions is undoubted, but they have no application to a statute which requires no demand. For the same reason State v. Munch (1875), 22 Minn. 67, State v. Bancroft (1879), 22 Kan. 170, 106 N. W. 931, and State v. McKinney (1906), 130 Iowa 370, 106 N. W. 931, cited by appellee, are not in point here.

It is claimed by appellee’s counsel that, regardless of the application of the phrase in the statute, “when called on to do so,” where, as here, the indictment does not allege an actual conversion, the allegation of a demand is necessary.

9. A refusal to deliver on demand is not a conversion, but only evidence thereof. State v. Mason (1886), 108 Ind. 48, 8 N. E. 716; Gordon v. Stockdale (1883), 89 Ind. 240; Gillett, Crim. Law §417.

In State v. Mason, supra, this court used the following language: “The fraudulent failure or refusal to account for and pay over the funds in his hands being established, no proof of a subsequent demand and refusal would have been required. A refusal to deliver upon demand is not a conversion. It is only evidence of a conversion, and hence in such a case proof of a subsequent demand and refusal would have afforded only redundant evidence of the misappropriation or conversion constituting the crime charged. 2 Bishop, Crim. Law §373; Commonwealth v. Tuckerman [1857], 10 Gray 173; Gordon v. Stockdale [1883], 89 Ind. 240.”

In the ease last cited this court said: “It is also contended by the appellant that the jury have not found a conversion of the wheat by him; that they have only found facts which operate as evidence of a conversion; that a demand and refusal are evidence of conversion, but not conclusive of the fact of conversion. This is true, and had the jury found . nothing more than this, the judgment could not be justified. Locke v. Merchants Nat. Bank [1879], 66 Ind. 353. But the jury also found that the defendant took possession of the growing wheat, excluded the appellee from it, harvested and threshed it, and refused to deliver any part of it, upon' demand, to the appellee. The acts amounted to a conversion of the wheat, and not merely to evidence of a conversion of it. ’ ’

In Gillett, Crim. Law §417, it is said: “A demand is not necessary to establish a conversion, but is only an evidence of it. ’ ’ To the same effect see 28 Am. and Eng. Ency. Law (2d ed.) 706, and 15 Cyc. 522.

10. There must, of course, be a conversion, before the crime of embezzlement can be committed. Where no time is fixed for the delivery of property, a demand is necessary to terminate a lawful possession thereof, but where, as here, the time of delivery, and the person to whom the delivery shall be made, are fixed by the statute, the retention of the property after such time amounts to a conversion thereof, and no demand is necessary. State v. Mason, supra; Hollingsworth v. State (1887), 111 Ind. 289, 12 N. E. 490; Moore v. State, ex rel. (1876), 55 Ind. 360; Jones v. Jones (1883), 91 Ind. 378; Boyd v. State, ex rel., supra; Foster v. State, ex rel., supra; Shook v. State, ex rel. (1876), 53 Ind. 403; Voris v. State, ex rel. (1874), 47 Ind. 345; Hudson v. State, ex rel. (1876), 54 Ind. 378; Buchanon v. State, ex rel. (1886), 106 Ind. 251, 6 N. E. 614; Commonwealth v. Kelley (1907), 125 Ky. 245, 101 S. W. 315, 15 Ann. Cas. 573 and note; State v. Reynolds (1900), 65 N. J. L. 424, 47 Atl. 644; People v. Goodrich (1904), 142 Cal. 216, 75 Pac. 796; 15 Cyc. 522; Gillett, Crim. Law §414; 2 Bishop, Crim. Law §373.

11. Hollingsworth v. State, supra, was a prosecution of a county treasurer, under this act, for failure to pay over to his successor public funds in his hands when his term ended. A previous demand was averred in the indictment, but defendant contended that there was no proof of a demand. The opinion of the court, on this branch of the ease, is as follows: “It is insisted still further, that the judgment should be reversed for the reason that there was no evidence that appellant’s successor in office made a demand upon him for the funds. Such a demand was not necessary in order to establish a conversion and embezzlement of the funds. State v. Mason [1886], 108 Ind. 48 [8 N. E. 716]; Commonwealth v. Tuckerman [1857], 10 Gray 173; Commonwealth v. Hussey [1873], 111 Mass. 432.”

In their oral argument, counsel for appellee, in support of their construction of §2284, supra, called the attention of the court to §2283 Bums 1908, Acts 1905 p. 584. This latter section was first enacted in 1855 (Acts 1855 p. 89). As amended and reenacted in 1881 (Acts 1881 [s. s.] p. 174, §42, §1943 R. S. 1881) it applied to various officers, including county treasurers, and provided that any such officer, “who shall fradulently fail or refuse, at the expiration of the term for ivhich he was elected or appointed, or at any time during such term, when legally required by the proper person or authority, to account for, deliver, and pay over to such person or persons as may be lawfully entitled to receive the same, all moneys * * * which may have come into his hands by virtue of his said office, shall be deemed guilty of embezzlement,” etc. The penalty fixed was imprisonment, fine and incapacity to hold office for any determinate period.

The act of 1883 (Acts 1883 p. 106, §2021 Burns 1901) fixed the same penalty, except that it omitted the incapacity to hold office.

In the reenactment of this act of 1855 as §390 of the act of 1905 (Acts 1905 p. 584, §2283 Bums 1908) the clause, “at the expiration of the term for which he was elected or appointed,” was eliminated, and the act now applies to fraudulent failures and refusals which occur “at any time during such term.”

It may be that when the act of 1883, supra, was passed, §1943, supra, was broad enough to cover the failure or refusal of the officer, when called on to do so, to pay to the persons entitled thereto funds received from a predecessor, and if so, that it is improbable that the legislature of 1883 sought merely to make the slight change in penalty that was made.

It is probable that the legislature of 1883 regarded it doubtful whether the act of 1855, supra, would embrace the conversion of funds received from a predecessor, and that the legislature of 1905 followed that construction.

12. If not, the act of 1883, supra, being the later, would control in case of conflict; and even if §§2283, 2284, supra, had been for the first time enacted in 1905, the latter, by reason of its position in the act, would control, in ease of irreconcilable conflict.

In any event, such question is in noway involved here. As before stated in this opinion, this court in State v. Wells, supra, declared that the act of 1883, supra, defined two offenses, and only the first one of these is in question here. The changes in §§2283, 2284, supra, made by the legislature of 1905, were evidently for the purpose of making the two sections harmonize with each other and with the construction given by this court in the case of State v. Wells, supra.

The Hollingsworth case was decided in 1887, and was never overruled, and the construction given the act, in reference to proof of demand, was adopted by the substantial reenactment of the statute.

Counsel for appellee say in their brief that because the indictment in that ease alleged a demand, the question of the averment could not have arisen. This is true, but if there was no necessity for proof of a demand we fail to see any reason for the need of such averment, and no sufficient reason has been suggested by counsel. Our statute (§2063 Burns 1908, Acts 1905 p. 584) provides that no indictment shall be quashed for any defect which does not tend to the prejudice of the substantial rights of the defendant on the merits. If this indictment could be held defective for its failure to aver a demand, when no proof whatever of such demand is required by the law, such defect would be wholly unsubstantial, and, under the statute, could not furnish a basis for a motion to quash.

This indictment follows the form given in Gillett, Criminal Law §420. This work has been recognized by this court and by the profession as a most valuable treatise on its subject. The author’s conclusion, that no demand is necessary in a prosecution for this offense, is thoroughly supported, not only by our own decisions, but by those of other states, and by textbook authorities. 10 Am. and Eng. Ency. Law (2d ed.) 995; Commonwealth v. Hussey, supra; State v. New (1875), 22 Minn. 76; Moore & Elliott, Ind. Crim. Law §§378, 968; 15 Cyc. 522; Commonwealth v. Kelly (1907), 125 Ky. 245, 101 S. W. 315, 15 Ann. Cas. 573 and note on pp. 575, 576; 2 Bishop, Crim. Law §373; Cox v.Delmas (1893), 99 Cal. 104, 33 Pac. 836; State v. Hunnicut (1879), 34 Ark. 562; 38 Cyc. 2031.

11. The Criminal Court of Marion County erred in quashing the indictment for the failure to aver a demand.

13. 14. Is the ownership of the money, averred in the indictment to have been embezzled, sufficiently alleged therein? It is essential, in charging this offense, to aver the felonious conversion of the property of another. The averment must negative any ownership in the person charged with the embezzlement. The indictment charges that said sum of money had come into the hands of said Oliver P. Ensley as such treasurer, by virtue of his said office of treasurer,” and that this money he, ‘ ‘ at the time of the expiration of his term of office, then and there had in his hands as such treasurer of said county. ’ ’

It is suggested by counsel for appellee, that this court will, among other things, take judicial notice that a county treasurer is entitled to certain commissions for the collection of delinquent taxes; that such commissions are received by the treasurer, by virtue of his office, and that the money here .charged to have been embezzled might consist of such commissions, the retention of which would, of course, not be embezzlement.

The indictment here, however, goes farther, and alleges that this sum of money, the defendant, at the expiration of his term of office, “had in his hands as such treasurer.” It could not possibly be held that money belonging to the treasurer, whether received in his official capacity or otherwise, was, at the expiration of his term of office, in his hands as the treasurer of the county. We think the language of the indictment excludes the theory that defendant might have been the owner of the money.

It is not necessary to describe specifically the funds and name the several owners thereof, such as county funds, township funds, etc. In his official capacity, a county treasurer collects taxes which are eventually divided and paid to the State, the county, the townships and the various other municipalities and institutions. To specify such funds, and the names of the owners thereof, would be, if not practically impossible, wholly unnecessary. Hollingsworth v. State, supra; State v. Hebel (1880), 72 Ind. 361; Armstrong v. State (1896), 145 Ind. 609, 43 N. E. 866; State v. Wells, supra; Gillett, Crim. Law §420; Brown v. State (1869), 18 Ohio St. 496; Brady v. Arizona (1900), 7 Ariz. 12, 60 Pac. 698; People v. McKinney (1862), 10 Mich. 53; State v. Smith (1874), 13 Kan. 274; State v. Walton (1873), 62 Me. 106.

In the case of Hollingsworth v. State, supra, this court held as follows on page 294: “It is further insisted that the funds charged to have been embezzled should have been particularly specified, whether county funds, school funds, etc., and that the indictment is bad for want of such particular description. The act of 1883 (Acts 1883 p. 106) provides that it shall be the duty of the treasurer of each of the several counties receiving money in his official capacity, at the expiration of his term of office, to pay over to his successor in office all moneys of every description, to whomsoever due, remaining in his hands at the expiration of such term, and that any treasurer so failing to pay over such moneys shall be deemed guilty of embezzlement. The contention of counsel is fully met and overthrown by the cases of People v. McKinney [1862], 10 Mich. 53, State v. Smith [1874], 13 Kan. 274, and State v. Graham [1874], 13 Kan. 299.”

That case was decided in 1887. The construction then given by this court, was adopted by the legislature in the reenactment. The averments of ownership were no more specific in the Hollingsworth case than in this. In fact they appear to have been the same, and consequently the authority of that ease is binding.

15. 14. No greater certainty is required in criminal, than in civil, pleadings. Both must be certain to a common intent. Mc-Cool v. State (1864), 23 Ind. 127; Gillett, Crim. Law §125. The law does not require technical niceties in the averments of an indictment. The charge should be sufficiently certain, that the court and the jury may know what they are to try, and to inform the defendant of the character of the proof which would be brought against him, and to bar another prosecution for the same offense. Greater particularity is not required. Gillett, Crim. Law §125; United States v. Greene (1906), 146 Fed. 778. The averments of ownership are sufficient. 15 Cyc. 516.

16. Appellee further maintains that to construe the statute under consideration as authorizing the imprisonment of an officer for the mere failure to pay over money to his successor at the expiration of his term would bring it in conflict with §22 of our bill of rights (Const. Art. 1, §22), which prohibits imprisonment for debt, except in case of fraud.

The statute does not expressly require that the official failure denounced shall be unlawful, fraudulent or felonious. In Stropes v. State (1889), 120 Ind. 562, 22 N. E. 773, a county treasurer was indicted for embezzlement under this statute. The indictment failed to allege that the acts therein charged were done either unlawfully, fraudulently or feloniously. In holding the indictment insufficient, the court, among other things, said: “But if the funds which came into his hands were destroyed by the act of God, or if the safe in which he should place them should be robbed and the money stolen without his fault, or if he should deposit the same in a bank of good repute for solvency and they should be lost without his fault, or if in the disbursement of the funds he should make an honest mistake and pay out’ more than he should have paid, we do not think he would be liable to a criminal prosecution under this statute; and yet by the term of the statute he would be liable. It is evident, therefore, that this statute is not to be construed in as broad a sense as its language would imply, and an indictment simply following its language is bad. We think that the indictment should have charged that the failure of the appellant to pay over to his successor in office the moneys remaining in his hands was felonious. ’ ’

In many other cases, in addition to the ones stated in the above quotation, no doubt the accused would be guiltless of a violation of the act. And, under this decision, the officer can in no case be punished, unless the failure to pay to his successor was in truth felonious.

Stropes v. State, supra, was decided in 1889. The substantial reenactment of the statute in 1905 (Acts 1905 p. 584, §2284 Burns 1908) adopted the construction thereof given it by this court. Consequently the statute must now be construed, just as it would be if the failure therein denounced were expressly characterized as felonious and fraudulent. So construed, the statute does not conflict with the above provision of our Constitution.

It is finally contended by appellee that the section of the act under which this indictment was returned was repealed by implication by the depository act of 1907 (Acts 1907 p. 391, §§7522-7546 Burns 1908). The State claims the act was not in effect as to defendant during his term, but, if it was, it did not repeal the act in question. This court does not judicially know whether the Marion county board of finance had before January 1, 1908, selected depositories for county funds, authorized to receive deposits, under the pro' visions of the act, and consequently it is necessary to consider the point raised by appellee’s counsel.

17. Repeals by implication are not favored. It is only when the new statute covers the whole subject-matter of the old one, adds new offenses, and prescribes different penalties, that such former criminal statute is held repealed by implication. State v. Wells, supra, and eases cited.

18. The depository act does not cover the whole subject-matter of §391 of the act of 1905 (Acts 1905 p. 584, §2284 Bums 1908). It does not require officers to deposit funds, collected by them, on the day they are received, but on the following day (Acts 1907 p. 391 §24, §7545 Burns 1908). It was not defendant’s duty to deposit any of his collections made on the last day of his term, in the public depositories. It was, as to such funds at least, his duty to turn them over to his successor, as provided in §391 of. the act of 1905, supra. This latter statute was not repealed by the depository act of 1907, supra.

In our opinion, the indictment in this case is sufficient to repel the motion to gnash, and the court erred in sustaining appellee’s motion.

Judgment reversed, with instructions to overrule the motion to quash.

Jordan and Myers, JJ., dissent.