State v. Parsons , 54 Iowa 405 ( 1880 )

Rothrock, J.

i criminal ztómentfiu-" dictment. I. One of the grounds of the motion in arrest of judgment is that the indictment does not charge Cendant with being an officer recognized by faw: fhere being no such officer as “ Treasurer of the Board of Directors.” Section 1802 of the Code provides that “ the board of directors of independent school districts shall, at their first regular meeting in each year, elect a president, a secretary, and a treasurer.” Now it is true the statute does not provide whether these officers shall be called president, secretary, and treasurer of the board of directors, or president, secretary, and treasurer of the dis trict. But this is wholly immaterial. The law provides for a treasurer, whose duty it is to receive and disburse the money of the district, and to name him in an indictment as treasurer of the board of directors is as plain a designation of the capacity in which he is charged as could well be made.

____ • II. It is next urged that the indictment is insufficient because it does not charge that the defendant failed to account for the money or funds which it is alleged he converted to his own use. It is a little remarkable that this indictment should have omitted to charge that the money was by the defendant unaccounted for, in view of the decision of this court in State v. Brandt, 41 Iowa, 600. It was there held that an indictment for the embezzlement of public money, under section 4243 of the Revision of 1860, should allege that the money charged to have been taken or loaned is also unaccounted for, and to constitute the offense it must have been both misapplied and lost to the State, and that the crime consisted only in converting, using or loaning of so rrmeh of the public money entrusted for safe-keeping to the person charged as is taken and unaccounted for.

We need not repeat the reasoning by which the court reached its conclusion in that case. The rule of that decision, construing as it did a criminal statute by defining what was necessary to charge in an indictment, should be adhered to unless the general assembly of the State has so changed or modified the statute as to require a different construction. In the absence of such modification or amendment, it would require the very strongest grounds to warrant the overruling of that case. No such vacillation,- by which precisely the same acts in one case are held to be innocent, and in another criminal, should be allowed.

In the opinion first filed in the Brandt case it was thought necessary to hold that the indictment should charge that the money taken or loaned was unaccounted for, in order to harrnonize section 4243 of the Eevision with sections 796, 797, 806, and. 807. The modification made by tbe Code consists in merely incorporatirig section 806 with 4243 in a somewhat condensed form, as section 3908 of tbe Code. But section 797 of tbe Eevision is retained as section 912 of tbe Code. We are unable to see that the incorporation- of tbe two sections, 806 and 4243, into one section makes any material difference in tbe question as to tbe necessity of an allegation that tbe money taken was not accounted for. Indeed, in tbe subsequent opinion in tbe Brandt case, in which all of tbe justices but one concurred, it is said that “ tbe fair construction of this section (4243 Eev.) alone and disconnected from any other section of tbe statute, must lead to tbe results reached in tbe former opinion,” and it is held that every act of loaning, using, or converting tbe public funds is an embezzlement of only “so mmeJi” thereof as is unaccounted for.

III. It is not claimed by tbe attorney general that tbe closing paragraph of tbe indictment cures tbe defect in tbe preceding paragraph, which sets forth tbe facts upon which it is sought to subject tbe defendant to tbe penalty of tbe statute. Tbe closing paragraph is but tbe legal conclusion drawn from tbe facts previously stated, and is not equivalent to charging that tbe defendant failed to account, etc. See State v. McCormick, 27 Iowa, 402.

Tbe motion in arrest of judgment should have been sustained.

Eevebsed.