State v. Smith , 13 Kan. 274 ( 1874 )

The opinion of the court was delivered by

Kingman, C. J.:

1. Embezzlement: construction of statute. The appellant was charged with the offense of embezzling the funds in the county treasury of Leavenworth county. He was tried and convicted, and from the judgment of the district court appeals. Several errors-are alleged, two of which raise the question of the sufficiency of the information. The first in order of time as well as in importance is, whether the law of 1873, page 177, amending § 88 of the crimes-and-punishment act of the General Statutes, includes within its provisions a county treasurer. So much of that section as is relevant to this case is as follows:

“ If any clerk, apprentice or servant of any private person, or of any co-partnership, * * * or if any officer, agent, clerk or servant of any incorporation, or any person employed in such capacity, shall embezzle or convert to his own use, or shall take, make way with, or secrete, with intent to convert to his own use, without the assent of his employer, any goods, rights in action, or valuable security, or effects whatsoever, belonging to any person, co-partnership, of corporation, which shall have come into his possession or under his care by virtue of such employment or office, he shall, upon conviction thereof, be punished in the manner prescribed by law for stealing property of the kind or value of the articles so embezzled, taken or secreted.” * * *

Is the county treasurer such an officer as is contemplated by the statute? It is urged with great ability and ingenuity that this question must be answered in the negative on the ground that a county is not acorporation within the meaning of the term as used in the act, and that this is apparent from the language used; that the section provides that the embezzlement must be without the assent of the employer, and that the treasurer is not the employe of any one, and even if it should be held that the county was his employer, it could not in any way “assent” to an unlawful appropriation of its funds. Again, it is urged that the treasurer, by giving bond as required by law, becomes not a bailee, but a special insurer of the public funds that come into his possession, and therefore no criminal liability attaches to him for any use he may make of such funds. The legislature having made him an insurei’, could not have intended also to make him a criminal. The course of reasoning is only suggested, and no attempt is made to state it at any length. The court has reached a different conclusion from the counsel for the appellant on this point, and the reasons for such conclusion will be briefly indicated.

A sketch of the legislation upon the subject of embezzlement is given by Mr. Bishop in the secbnd volume of his work on Criminal Law, from which it will be seen that from the time our ancestors thought it necessary to legislate upon this subject that the law has been gradually enlarged in its scope as from time to time society required such action. The section of our statute quoted above .embraces within its terms a much greater variety of classes of persons who can commit the crime of embezzlement, and a much greater variety of circumstances under which it can be committed, than was provided for in the older statutes in which the law on this subject had its origin, and in some respects than any of the statutes of other states that have come under our notice. It is not necessary to point out these changes except in one instance, and that is the substitution of the word “incorporation” in the General Statutes of 1868 for the phrase “incorporated company” in the Compiled Laws of 1862, (§82, p. 30Í,) and the continued use of this word in the laws of 1873, while in this last statute the word “corporation” is added in describing the parties whose goods, etc., may be embezzled. This change must have been made for a purpose, and in our judgment it was intentionally made so as to include many persons who were not before within its letter. The substituted word in the General Statutes is an awkward one, yet still it expresses its purpose with sufficient precision. While the word “corporation,” which is also used in the law of 1873, is a better one, it still does not change the meaning. Neither the revisors nor the legislature could have been ignorant of the difference between private and public corporations, and when they substituted a term that embraced all corporations for a phrase that evidently included only a voluntary association of persons, it will hardly do to say that they did it for the sake of euphony. The same revisors and the same legislature declared that counties were bodies corporate, (§ 1, ch. 25,) and must have known that the change in the section quoted would bring within its terms a large class of officers of municipal corporations, and others not theretofore embraced within its provisions. Take the plain terms of the law of 1873, and the declaration that counties are corporaations, and there can be little doubt that county officers are embraced within the letter of the statute. We are referred to the legislation of other states to show that those states have thought it necessary to enact specific laws embracing county officers, although their statutes in reference to embezzlement were very similar to our own. The inference we draw from such legislation is, that as it has been found necessary elsewhere it may have been thought important in this state; and certainly it was as well to do it by a change in the language of the statute of embezzlement as by a separate enactment. Indeed, it seems to us the better way. If the agents of individuals or incorporated companies should be punished for certain specified offenses, then it seems fit that the agents of the public should be punished for a like offense.

Nor does the giving of a bond indicate a purpose not to secure the public interests by punishing those who wrongfully execute the public trusts confided to them. Such bonds are frequently given by the employes of private persons, and yet that would not be claimed as exempting them from the penalties of the law of embezzlement. We cannot perceive why a bond should have any other effect when required by law than when exacted by contract. This view is strength1ened by reference to other provisions of our statutes which inflict severe penalties on the county treasurer for much less serious offenses than the one charged in this case. (See Gen. Stat., §73, p. 270, and §75, p. 930.) It is urged on this point that § 51, p. 264, establishes the relation of debtor and creditor between the county treasurer and the public, and that the treasurer being the debtor for the funds in his possession cannot be guilty of embezzling what is his own, as he owes it. But such is not the meaning or purpose of that section. It was intended to, and does, prescribe the method of keeping the treasurer’s books, but does not pretend to determine the relations of the county treasurer to the county. To draw from a section of law intended to provide a convenient form of keeping an account, an inference that those provisions define and establish the relations of the treasurer to the county, is hardly warrantable, and in our view not sound.

It is argued that the treasurer cannot be included because he has no “ employer,” and by the statute the offense can only be committed against the assent of the employer. One thing is certain, that the treasurer is employed in his office, on business no.t his own, and not volunteered, but in pursuance of certain well-known conditions. All these facts constitute an employment, and also an employer and employe, and while we shall not attempt to define who is the employer, we are satisfied that there is one, and the fact that that employer cannot authorize the illegal use of the funds in the treasurer’s hands, only simplifies' the necessary testimony, but does not change the construction of the law. The truth is, that in the original English, statute the word was a necessary one, and has been retained in all the changes, although in some respects its place is an awkward one. It still retains its place in our statute, and if there is any supposable case where the word embezzlement itself does not presuppose the non-assent of the principal or employer, it must be in a case where the employer is legally incapacitated from giving such assent.

2.Description funds embez1zled by public officers. II. Another defect alleged is, that the information fails to specifically describe the property charged to have been embezzled. The information charges specifically to what fund each portion of the total charged be-m , i • i n longs, but does not describe the kinds ot money embezzled. In transactions such as are now under consideration, running through a long period of time, and involving large sums of money, received from a whole community, and being constantly changed by the necessities of the office, such a description of the funds is impossible, and if necessary to be averred must be proven, and therefore is an effectual bar to all prosecutions under the law. Mr. Bishop in his treatise on Criminal Law, after showing that under the English statutes the courts have held that the particular property embezzled must be specifically described, and pointing out cases where such description would be impossible, makes upon those decisions these observations: “ That a court departs from its duty when it does not allow some form of pleading to cover every offense known in the law. We conclude, consequently, that embezzlement may in reason be committed under the circumstances mentioned, in this section, and that those courts which have determined otherwise have erred.” (Vol. 2, §315a.) We are not forced to discuss the authorities on this point, for the change in the law necessarily compels such construction of its provisions as will give it effect, and we do not think that the'reason of those decisions when applied to the agents of private persons, who can at all times scrutinize the acts of those in their employ, apply to a public officer. The public at large can exercise no constant supervision over his acts, nor can it, like a private individual, assume the direct custody of the funds at any moment. The proper, authorities may require him to account, may examine the funds in his possession, but in the next hour all these funds may be changed, long before the act of embezzlement is done, or the intent is formed. To suppose that the legislature, when they added the large class of public officers to those who might be amenable to the law for the offense of embezzlement, intended to require proof of the identity of the money embezzled, or a description of it, and from whom it was received, is to infer that they intended to enact a law the enforcement of which would be impossible. It will not do to permit an artificial rule of pleading, having a doubtful foundation in reason, to lead to such a disastrous result. This exact point has been decided in Michigan in a, very able opinion, (The People v. McKinney, 10 Mich., 54,) and we but follow that decision in holding that the information is not defective in not describing precisely the funds embezzled.

3. Preliminary examination; plea in abatement; variance in amount and description. III. The next error alleged is in the overruling the special plea of defendant. These are the essential facts: Smith was arrested on a charge of embezzling the sum of $67,000 of the funds belonging to the county of Leavenworth, The information charges him, in the first count, . ° ' ' with embezzling $67,378.42 belonging to divers designated funds in the treasury of the county of Leavenworth. The special plea is, that the defendant did not have a preliminary examination as to the embezzlement of any money or other thing belonging to any other person than the county of Leavenworth, nor did he waive his right to such examination. The court upon an inspection ruled against the defendant, and with some hesitation we conclude correctly. To hold that the warrant of a justice should describe the offense as accurately as the information, would in most cases be to defeat justice. They are generally unlearned in the technicalities of the law, and describe the offense in general terms, while the information is expected to be more exact in its terms, and more full and accurate in its statements. We think the main purpose of the required preliminary examination was reached in this case, and the defendant sufficiently apprised of the general charge, in the complaint before the police judge, of what offense he would have to answer in a more definite charge before the district court.

4. instructions: Orations of ^act IV. The remaining questions in this case arise upon the instructions; and while the counsel for the appellant in general terms complains of the refusal of the court to give a great number of instructions covering many pages, yet no specific error is pointed out except as to one instruction to be noticed immediately. Many of these instructions so refused were substantially and correctly given elsewhere ™ °^argej s° were properly refused; of others, the meager statement of the evidence in the record leaves us unable to say whether they were relevant to any testimony in the case or not. In this state of the case we cannot say that any of the instructions were improperly refused. ' One of the instructions given is as follows:

“The statute defining the crime and fixing the punishment for embezzlement was designed to punish the fraudulent or illegal conversion of money or property entrusted to the care of the persons named in the statute, and as a safeguard against such fraudulent or illegal conversion of such property; and when it has been established that the funds or property charged has reached the hands of the officer, .and that the same was not forthcoming when properly or legally demanded, the law presumes an illegal conversion of such funds or property, and the burden of proving the legal use of such property or money is upon the officer”

The last part of this instruction lays down a rule to which we cannot assent. It would be most perilous to an officer who had faithfully discharged responsible duties for a series of years, handling in his official capacity large amounts of money, and who should find at last that there was a deficiency for which he could not account, or replace, although for a sum which, compared with the amounts which had passed through his hands, would be trivial. In such a case, under the instruction given, a jury would be compelled to find a verdict of guilty, although they might believe the man was perfectly honest. Nor is this an extreme case. Much harder ones may readily be imagined. In every case the jury are the sole triers of the main fact of the guilt of the accused, and judges of the testimony establishing each fact necessary to constitute the main fact. The facts are to be proven; what those facts show, is for the jury to decide.. It may be considered law in this country generally, that the burden of proof in criminal cases is on the state, and- that this burden never changes. It is true that there are some decisions seemingly adverse to this opinion, but they are very few, and do not rest on sound reasoning. The accused stands on the presumption of his innocence until a complete case is made against him, and if the testimony is insufficient on any point he must be acquitted. These rules are merely stated. Neither the public nor the profession is interested in the discussion of questions long settled, well understood, and generally acquiesced in. This instruction, we think, violates these rules, and is therefore erroneous. In the argument it is likened to an accused person being in the unexplained possession of property recently stolen. The cases are not analagous. In the latter case the crime itself is already proven. The possession of the fruits of the crime is such evidence as authorizes the jury to find such possessor guilty, and whether this is a presumption of law or fact, or no presumption at all, need not now be stated. We only desire to point out the difference between the two cases. In the one case it is used to prove both the offense and the offender; in the'other it is only used to prove the perpetrator of a crime already proven. In the case at bar, such evidence would be sufficient' if the jury believed the facts showed also the guilty intent of the accused to convert the property to his own use. Ordinarily, a jury might well draw such an inference from such facts; but the court below says in effect that they are compelled to draw such an inference, and this, in our opinion, is an unauthorized assumption by the court of a duty that belonged exclusively to the jury. From the proven facts the jury, not the court, must find that the accused converted the money to his own use. In this case they might well have found him guilty from the facts proven, if they had been left at liberty to weigh the value of these facts, as well as any others necessary to prove the guilt of the accused. We are not certain that the instruction misled the jury, but we are not certain that it did not; and as it is clearly erroneous, on this ground alone we are constrained to direct a reversal of the judgment, and order a new-trial in accordance with the motion of the appellant.

All the Justices concurring.