State v. Murphy , 124 Miss. 440 ( 1920 )

EthridgEj J.,

delivered the opinion of the court.

The appellee, John J. Murphy, was indicted for embezzlement and demurred to the indictment interposed and sustained by,the court below, from which judgment the state prosecutes this appeal.

The indictment reads as follows:

“The grand jurors of the state of Mississippi . .. . upon their oaths present that John J. Murphy, in the county aforesaid, on the 1st day of January, A. D. 1919, then and there being the regularly and legally elected, qualified, and acting chancery clerk of Harrison county, Miss., then and there acting in his official capacity as said chancery clerk aforesaid, and then and there by virtue of his said office as said chancery clerk having in his possession and in his custody a certain promissory note in words and figures and in effect as follows, to wit: •

“ ‘$997.35.

Gulfport, Miss., Feb. 8, 1915.

“ ‘One year after date I, we, or either of us promise to pay to John J. Murphy, chancery clerk, or his successor in office, or bearer., nine hundred ninety-seven and 35/100 ($997.35) dollars, payable to the Bank of Commerce, Gulf-port, Mississippi, for value received, with interest from date at the rate of eight per cent, per annum until paid without defalcation or discount. The makers and indorsers of this note severally Avaive presentment for payment, notice of nonpayment, want of consideration, protest and consent that the time of payment may be extended Avithout notice thereof. And in the event default is made in the payment of this note at maturity and it is placed in the hands of an attorney for collection or suit is brought on the same, then an additional amount of fifteen per cent, on the principal and interest on this note shall be added to the same as collection fees.

“ ‘[Signed]

B. P. HARRISON.

“ ‘Hugh McInnis.

“ ‘T. B. J. Kellie®.

“‘C. L. Waller/

—Avhich said promissory note came into his possession by virtue of the loan made to B. P. Harrison out of the funds in the hands of said John J. Murphy, chancery clerk as aforesaid, belonging to the unknoAArn heirs of James Ramsay, deceased, and John Parker, deceased, Avhich said loan Avas made to the said B. P. Harrison and said note taken by him, the said John J. Murphy, in his official capacity, then and there as said chancery clerk aforesaid, and said note being then and there unpaid, and the said John J. Murphy, as chancery clerk aforesaid, then and there having the same in his possession by virtue of his said office did then and there unlaAvfully, willfully, designedly, feloniously, and fraudulently intending and designing to cheat and defraud the said unknoAvn heirs of James Ramsay, deceased, and the unknoAvn heirs of John Parker, deceased, and to commit a fraud in office and embezzle the sum of nine hundred ninety-seven dollars and thirty-five cents, together Avith the interest thereon, the exact amount of Avhich being to the grand jurors unknoAvn, convert said note into cash at and through the First National Bank of Gulfport, a banking corporation domiciled at Gulfport, Harrison county, Miss., and received thereon from the said First National Bank the said sum of nine hundred ninety-seven dollars and thirty-five cents and interest on said note from date at the rate of eight per cent, per annum, the exact amount of Avhich being to the grand jurors unknoAvn, and did then and there willfully, unlaAvfully, fraudulently, and feloniously embezzle said money and unlaAvfully, willfully, fraudulently, and feloniously intending to embezzle and convert the same to his own use, said money being the property of the unknown heirs of James Ramsay, deceased, and the unknown heirs of John Parker, deceased, and of the value of nine hundred ninety-seven dollars and thirty-five cents in lawful inoney of the United States of America, contrary to the form of the statute in such case made and provided, and against the peace- and dignity of the state of Mississippi.” .

The demurrer contained sixteen grounds and read as follows:

“Now comes John J. Murphy, defendant, and demurs to the indictment against him in said cause, and for ground of demurrer says:

“(1) The indictment charges that John J. Murphy, in his official capacity, received certain promissory note of date February 8, 1915, for nine hundred ninety-seven dollars and thirty-five cents, but does not charge him with the embezzlement of said note.

“(2) Said indictment charges the defendant with the embezzlement of nine hundred ninety-sever dollars and thirty-five cents with interest, but does not state any facts showing that said money came into his hands under or by virtue of his office, or that he held the same in trust for any other person.

“(3) Said indictment does charge defendant Avitli embezzlement as chancery clerk of nine hundred ninety-seven dollars and thirty-five cents, with interest at eight per cent, from February 8, 1.915, Avithout alleging any facts showing that the said money came into his hands as chancery clerk, or by virtue of his office as such clerk.

“(4) Said indictment does not set up any facts that shoAv Iioav said note came into his possession by virtue of his office as chancery clerk, or in the discharge of any official duty.

“(5) Said indictment does not show that this defendant embezzled either property or money that came into his possession by virtue of his office as chancery clerk.

“(6) That said indictment does not show that this defendant converted to his own use, feloniously or otherwise, any property or money belonging to any living person or any corporation.

“(7) Said note set out in the indictment shows that it is payable to bearer, or to John J\ Murphy, chancery clerk, or to the Bank'of Commerce, of Gulfport, Miss., and said indictment does not show that said John J. Murphy did not have authority to deliver the note or negotiate the note to the First National Bank of Gulfport, Miss. .

“(8) Said indictment does not show that said note Avas a valuable thing, or had any value whatever.

“(9) Said indictment does not show hoAV the alleged funds of the unknoAvn heirs of James Ramsay and John Parker came into the possession of the defendant, and does not show the purpose for which they were held by defendant.

“(10) Said indictment does not sIioav that the defendant ever loaned any of said funds to any person, or that he delivered any of said funds to any person, as a consideration of said note, or that he ever parted Avith any funds belonging to the heirs of James Ramsay and John Parker, or either of them.

“(11) Said indictment does not charge that the defendant embezzled any of the said funds of the heirs of James Ramsay and John Parker alleged to have come into his possession.

“ (12) Said indictment does not show that said note was the property of the heirs of James Ramsay and John Parker, or that any funds-belonging to the heirs of James Ramsay and John Parker constituted the considertation of said note, or that there was any consideration valuable in law for said note, or that said note was collectible by law.

“(13) Said indictment does not show that James Ramsay and John Parker left any heirs or that there are any heirs of the said James Ramsay and John Parker now living.

“(14) Said indictment is vague, uncertain, indefinite, and insufficient in law.

“(15) Said indictment charges no crime known to the law.

“(16) Said indictment is had for duplicity in this, that it charges two felonies in one count.”

The indictment was founded upon section 1141, Code of 1906 (Hemingway’s Code, section 869)., which reads as follows:

“If any state officer or any county officer . ... or an officer of any city, town, or village, or a notary public, or any other person holding any public office or employment, or any executor, administrator, or guardian, or any trustee of an express trust, any master or commissioner or receiver, or any attorney at law or solicitor, or any bank or collecting agent, or other person engaged in like public employment, or any other person undertaking to act for others and intrusted by them with business of any kind, or with money, shall unlaAvfully convert to his oAvn use any money or other valuable thing Avhich comes to his hands or possession by virtue of his office or employment, or shall not, Avhen laAvfully required to turn over such money or deliver such thing, immediately do so according to his legal obligation, he shall, on conviction, be imprisoned in the penitentiary not more than tAventy years, or be fined not more than one thousand dollars, Qr imprisoned in the county jail not more than one year.”

We think the indictment is a good one for embezzlement of money coming into the hands of appellee by virtue of his office and converted to his oavii use. The indictment sets out Avith needless prolixity the facts constituting the transaction, and, while it - is said in the indictment that the note came into his possession as chancery clerk, and that he collected the amount of the note or disposed of the note to the First National Bank and received from the bank the money named in the indictment, it does not make the indictment charge the embezzlement of the note. The money for Avhich the note Avas given, constituted trust funds belonging to tlie parties named as unknown heirs of James Ramsay, deceased, and John Parker, deceased, and that he took this note and collected money on it. This does not render the indictment bad for duplicity, for, when he obtained the money for the note which he probably had a right to do, the money so obtained did not become his personal money, but became money belonging to the persons being the heirs of said James Ramsay, deceased, and John Parker, deceased, and the indictment distinctly charges this fact and charges that after receiving the money for the note that Murphy then and there unlawfully, willfully, fraudulently, and feloniously intending to convert the same to his own use.

It is said that the indictment is insufficient because also it did not allege the ownership of the money in person or corporation, and that the indictment should have charged that the money embezzled belonged to persons to the grand jurors unknown.

In our opinion the designation of the owners as the unknown heirs of James Ramsay, deceased, and John Parker, deceased, sufficiently designate the owners of the money. It is equivalent to saying that the money belongs to the heirs of James Ramsay, deceased, and John Parker, deceased, whose names are to the grand jurors unknown. A great deal of technical Refinement is used in draAving indictments of this kind, and in trying to keep within the technical rules the grand jury went needlessly into the history of the transaction. But, taking the sAvord of common sense and cutting the Gordian knot of technical refinement, we find that the indictment charges Murphy was chancery clerk, and that as such moneys came into his possession by virtue of his office, that said money belonged to the unknown heirs of the persons named, and that Murphy, intending and designing to cheat and defraud the said unknown heirs of their money, converted it to his own use with the felonious intent to deprive them of such money.

The heirs of a person . necessarily mean those living persons who are entitled to the fund, and using the expression “unknown heirs” is equivalent to saying that the names of such heirs are to the grand jury unknown.

The judgment of the court sustaining thé demurrer will be reversed, and the cause remanded for a trial upon the indictment.

Reversed and remanded.