State v. Huff

The indictment in this case charges the defendant, a former county treasurer, with the crime of embezzlement. Embezzlement by a public officer is defined in sections 13027 and 13029 of the Code of 1931. The crime may be committed by failing or refusing to keep public money coming into the hands of such officer in a place of custody or deposit provided by law, and by keeping deposits of such money or property in some other place than that provided by law, and by the unlawful conversion to his own use by way of investment in any kind of property or in loans without authority of law, and by converting to his own use any such funds as may come into his hands as such officer, and by failing to account, on demand of the proper authority, for such funds as may come into his possession by virtue of his office.

Section 13029 was enacted as chapter 67 of the laws of the Twenty-sixth General Assembly and as a part of section 4840 of the Code of 1897, or as now editorially classified as section 13027. Its purpose and effect was to create a distinct form of the crime of embezzlement, but not a new crime. State v. Hoffman,134 Iowa 587, 112 N.W. 103; State v. McKinney, 130 Iowa 370, 106 N.W. 931; State v. Gardiner, 205 Iowa 30, 215 N.W. 758; State v. Berg, 200 Iowa 628, 204 N.W. 441.

It will be observed that subdivisions 1 and 2 of section 13027 are distinct in character from each of the remaining forms or grounds of the offense. These subdivisions do not necessarily contemplate the actual misappropriation or conversion of funds. They have a distinct purpose. The obvious design of the legislature has at all times been to prevent the unlawful waste of public funds coming into the possession of the legal and proper custodians thereof.

Neither of the sections as at present editorially classified, nor the respective subdivisions, defines a distinct and independent crime. The crime defined by each and all of them is embezzlement. The statute simply designates the various forms or means by which the crime of embezzlement may be committed. Public officers such as are designated in the statute frequently, and the county treasurer almost daily, receive public funds into their offices. The legislature has not contemplated that each separate and independent defalcation must be prosecuted as a distinct and independent crime. Defalcations of public officers frequently, and indeed usually, result from the unlawful appropriation of divers items from fifty cents to much larger sums. A clerk of the district court might, in the course of a two-year term, appropriate in the aggregate hundreds of dollars and yet each single misappropriation not exceed fifty cents or one dollar. He may be charged in the indictment with having committed the crime in any of the forms designated by the statute and without specifying each separate item. The form chosen cannot operate as a limitation upon the right of the state to offer proof of the several distinct misappropriations. This is emphasized by the punishment provided which, in part, is a fine equal to the amount embezzled or the value of the property considered. The indictment in this case is obviously bottomed upon section 13029. This is true, notwithstanding the use of the word "conversion" therein. So far as this point is concerned, the indictment would have been good without the use of this term. It may be conceded that the indictment is defective, but no question involving its sufficiency or validity is now before the court. The state had the absolute right to introduce testimony of each and every separate and distinct item which it claimed had been unlawfully converted. County treasurers are elected for a term of two years. But one prosecution is necessary to cover all of the defalcations during such term. The sum charged in the indictment represents the aggregate amount of the various items of the public funds misappropriated by defendant. The court could not properly require the state to elect to stand upon any particular item. The offense under the present indictment was the misappropriation of public funds and the failure to account therefor on demand. It seems to me that it would be little short of an absurdity for the court to hold that a separate and distinct prosecution must be had of each and every separate and distinct item appropriated. Surely, the legislature had nothing of this sort in contemplation.

The result of the foregoing interpretation of the statute renders the plea of former jeopardy wholly without foundation or merit. The indictment charges but a single offense, and that is the crime of embezzlement committed by the unlawful diversion or misappropriation of $4,251.80 of the public funds during his term of office for which he failed to account on demand.