State v. Nicholson ( 1887 )

Robinson, J.,

delivered the opinion of the Court.

The traverser, a collector of State and county taxes for . Charles County, was indicted under the Act of 1812, chap. 829, which provides: That if any collector, shall wilfully detain in his possession taxes collected by him, and neglect to pay the same into the treasury of the State, for more than sixty days after the day upon which it is made his duty to pay the same, or if no particular day he appointed, shall neglect to pay the same for the space of six months, he shall be deemed to be a defaulter, and upon conviction shall he imprisoned in the penitentiary, &c., “ unless the amount for which he is a defaulter he sooner paid.”

In support of the demurrer it is argued in the first .place, that the Act is in conflict with the Constitution of this State, which abolishes imprisonment for debt, There is a broad distinction, however, between imprisonment for debt within the meaning of the Constitution, and imprisonment for a breach of duty on the part of a public officer, although such breach of duty may be the neglect or refusal on his part to pay money received by him for the use of the State. Public officers were by the common law indictable for malfeasance or misfeasance in office, and although the Constitution abolishes imprisonment for debt, this in no manner interferes with the power of the Legislature to punish such offences by imprisonment or otherwise as the public interests may require.

A collector of taxes is a public officer, whose duty it is to collect the taxes and pay the same into the treasury of the State, or to the parties entitled, and if he neglects to discharge this duty, and appropriates to his own use the money thus received by him as collector, the Legislature has the power to declare such acts of commission or omission to be an offence punishable in such manner as it may deem proper. Any other construction would deprive the Legislature of all power to punish defaulting officials for the appropriation by them of money received and held in trust for the State. Nor is it any objection to the statute that it provides, upon the payment of the money for which he is in default either before or after conviction, such collector shall be discharged, for the reason that the Legislature has the right to prescribe the terms and conditions upon which the punishment shall be imposed. Passing then from these objections to the statute, we come to the indictment, and this is said to be fatally defective, because it does not charge that the traverser detained the money six months after the same was collected by him. According to our reading of the indictment, this is charged in plain and explicit terms. It avers that on the 2nd of April, 1884, the traverser, as collector, received the sum of fourteen hundred dollars on account of taxes due the State, and that he did then and there unlawfully and wilfully detain the said sum in his possession. &c., and unlawfully, &c., did neglect to pay said sum into the treasury of the State, for the space of “ six months, after he, the said Thomas F. Nicholson, had so as aforesaid collected and received the said amount, &c.” Here is an express averment that the traverser did detain in his possession, the money so collected by him for six months after it had heen so collected. Now, certainty, to a certain intent in general, is all that is required in indictments, that is to say, the Court will presume in favor of the pleader, every proposition which by reasonable intendment is impliedly included in the pleading, though not expressed. Arch-hold Crim. Plead., sec. 44.

Then again, it is said, there is no averment that the-money is still detained. This it was unnecessary to charge, for the reason, that if the money had been paid before or after the finding of the indictment, this was matter to be set up by way of defence. “It is a good,general rule,” says Hawlcins’ Pleas, vol. 2, part 2, ch. 25, sec. 112, “ that every indictment must bring the defendant within all the descriptions mentioned in the body of the Act, except they are such as carry with them the hare denial of a matter, the affirmation whereof is a proper and rational plea for the defendant; as where it is enacted, ‘that all persons having no reasonable excuse tobe absent, shall go to their parish church, &c.,’ in which case it is said, that it is not necessary to shew, that the defendant had no reasonable excuse, for this will come most properly in question from the plea of the defendant.”

The rule thus laid down is fully sustained in Rex vs. Baxter, 5 Term Rep., 83; Rex vs. Pollard, 2 Lord Raymond, 1370; 2 Leonard, 5. So here, if the traverser had paid the money, and it was no longer detained by him, this was matter of defence, and not necessary therefore to be set forth in the indictment.

The further objection that it does not aver that the traverser was duly appointed collector, is equally untenable. It does charge in express' terms, that he was collector of State and county taxes for Charles County, and as such did collect the sum of fourteen hundred dollars on account of taxes due the State. This is all that is necessary. In King vs. Holland, 5 Term Rep., 607, where the defendant was tried for malfeasance in office, as one of the counsellors of the East India Company, the information charged that the defendant was one of said counsellors, and acted as such. On demurrer it was argued in that case as in this, that the information ought to have averred that the defendant was duly appointed counsellor, but Lord Kenyon held that it was sufficient to state generally that he was counsellor, and the objection was overruled.

(Decided 15th March, 1887.)

For the same reason it was quite unnecessary to charge that the taxes were levied by the County Commissioners, or that the taxes were placed in the hands of the traverser for collection. The averment that he was collector of taxes, and as collector collected the taxes for the year 1883, fairly implies that the taxes were duly levied and placed in his hands for collection.

For these reasons the pro forma judgment on the demurrer will be reversed, and the cause remanded.

Judgment reversed, and cause remanded.