State v. Neal , 59 S.C. 259 ( 1901 )

The opinion of the Court was delivered by

Mr. Justice Gary.

This is an appeal from an order quashing an indictment. A copy of the indictment and of the order of the Court setting forth the grounds upon which the indictment was quashed, will be incorporated in the report of the case.

The appellant was indicte'd under section 304 of the Crimi-' nal Code, which contains thé following provisions: “It shall be the duty of every sheriff, judge of probate, clerk'of the court of common pidas, -county treasurer, or any'-other State or county officer entrusted with funds by virtue of his office," upon retiring from office, to turn over to 'his 'successor' all moneys received by 'him as suoh officer, and remaining 'in his hands as such officer, within thirty days from the time when his successor shall have entered upon the duties of his office, &c.” ■ • ' "

The fifth exception was abandoned.

It will not be necessary to consider the exceptions seriatim, as the appellant’s attorneys correctly state that the practical question presented by them is;- “Was Neal, at the said dates, as superintendent of the State penitentiary, and'by virtue of his office as such, charged by law with the receipt of and intrusted with moneys arising from convict labor?” The office of superintendent of the penitentiary does not exist at common law. We must, therefore, look to the laws of our State to ascertain his powers, duties and liabilities. By section 551 of the- Criminal Code, it is made the duty of the superintendent of the penitentiary “to receive, and pay out all moneys granted by the 'General Assembly, or in any other way accruing for the support of the prison and carrying on the work.” Section 3 of the act of 1899 (23 Stat.), p. 164, to which reference is made in the order of his Honor, the presiding Judge, -contains'the following provision, to wit: “That the board of directors of the State penitentiary are hereby directed to pay into the treasury of the State at the end of each three months," or within five days thereafter, all amounts received by them from the hire of convicts and from other sources, after paying the necessary expenses' of the said institution and all other disbursements allowed by law, the said amounts to be paid into the treasury to be held subject to the warrants of the comptroller general, tó' pay the amounts appropriated by the General Assembly, in the same manner as other funds in the treasury * * *” (italics ours). The amounts received from the hire'of convicts were not to be paid into the treasury until the “necessary expenses of the said institution and all other disbursements allowed by law” were deducted therefrom. The moneys received from the hire of convicts were primarily applicable to said expenses and -disbursements, and it was only the balance remaining after the payment of said expenses and disbursements that was to be paid into the treasury. Section 3, act of 1899, must, therefore, be construed as intending that moneys received from the hire of convicts are to be regarded as “accruing for the support of the prison and carrying on the work.” Under the provision of the statute making it the -duty of the superintendent of the penitentiary to receive all moneys “accruing for the support of the prison and carrying on the work,” he had the right, by virtue of his office as superintendent, and it was made his dirty to receive moneys 'arising from the hire of convicts. His Honor, the Circuit Judge, was, therefore, in error in ruling that he did not receive the funds arising from the hire of convicts, by virtue of his office as superintendent. There are several -other statutory provisions, mentioned in the argument of the appellant’s attorneys, at least, tending to-show that the foregoing construction is -correct, but the Court does not deem it necessary to refer to them.

It is the judgment of this Court, that the order of the Circuit Court be reversed.