Sanders v. State

I think the indictment set out in the majority opinion is fatally defective, in that it fails to comply with section 26 of the state Constitution. I am unwilling to trim down the section of the Constitution, and think it should be given its full meaning and effect. It is of the utmost importance that a person accused of crime be informed of the nature and cause of the accusation against him. The indictment should not deal in generalities, but must descend to particulars and give specific information to the accused of precisely the acts that he is charged with having committed, so that he may judge, and, judging, question the sufficiency of the indictment and the legality or illegality of the charge against him.

The present case and the statute under which the appellant is indicted demonstrate the necessity of a specification in the indictment of the particular things that constitute the crime. The statute is set out in the majority opinion, and it will be seen from a reading of the statute that, like charity, it covers a multitude of sins. These crimes vary greatly in details and facts, and, where the person is indicted for a violation of the statute, the particular facts constituting such violation should be set forth with certainty and particularity. Let us get certain principles fixed in mind which are required by section 26 of the Constitution as construed by the decisions of this court and the United States courts dealing with a similar provision in the federal Constitution.

In Murphy v. State, 24 Miss. 590, referring to the constitutional provision embodied in the present section 26 of the Constitution, the court said:

"The constitutional provision, that every man charged with a crime has a right `to demand the nature and cause of the accusation against him,' was intended to secure to the accused such a specific designation of the offense laid to his charge, as would enable him to make every preparation for his trial necessary to his full and complete defense. We therefore think that under it the accused is entitled to demand `such a certain description of the offense charged, and statement of the facts by which it is constituted, as will fully identify the accusation, lest the grand jury should find a bill for one offense, and the defendant be put upon his trial for another, without any authority; and also that the defendant may know what crime he is called upon to answer, in order that he may be prepared with his evidence, and that his conviction or acquittal may insure his subsequent protection, should he again be questioned on the same ground; and that he may be enabled to plead a previous conviction or acquittal of the same offense in bar of any subsequent proceedings against him.'

"The indictment ought, in our opinion, to describe and identify the offense with such a degree of certainty that the accused and the court may know, that the offense for which he is put upon his trial, is the same offense with that for which he stands indicted, in order that he may plead in bar a previous conviction or acquittal. An indictment which does not contain this degree of certainty does not communicate to the accused `the nature and cause of the accusation' against him, in the manner contemplated and designed by the bill of rights. Nor has the legislature the power to dispense with such a degree of certainty in indictments."

In Riggs v. State, 26 Miss. 51, at page 54, the court said: "The description of the act with which the prisoner is charged as a felony is contained in the following averment, to-wit: `That the said James Riggs, with a certain knife which he then and there in his right hand had and held, the said Joel E. Hunt, in and upon the right shoulder, and in and upon the right side of the body, and in and upon the right side of the belly of him, the said Joel E. Hunt, then and there feloniously, willfully, and of his malice aforethought, did strike and thrust, giving to the said Joel E. Hunt, etc., the mortal wounds, etc., of which said mortal wounds the said Hunt did then and there languish, and languishing did live for the space of about twenty hours, and did then die.'

"Every valid charge for murder necessarily contains three distinct propositions: (1) That the person slain was murdered; (2) that the party charged perpetrated the deed; and (3) that the felony was committed within the county where the indictment is found. In the indictment before us, it is seen that no averment of place is affixed to the time when the subject of the alleged murder is stated to have died. After the reception of the wounds which caused his death, he `languishing did live for the space of about twenty hours, and then did die.' It is manifest, that, tested by the rule above laid down, this averment is insufficient. The fact that the murdered party did not die within the county of Monroe is not necessarily excluded, or rather it does not appear by direct averment and with certainty, that he died within that county. This fact it was indispensable that the indictment should aver. For although the mortal wound may have been there inflicted, if the death in fact occurred in another county, by express statutory provision the circuit court of Monroe had no jurisdiction of the offense."

In Norris v. State, 33 Miss. 373, in the first syllabus, the rule is announced as follows: "Under the Constitution, `in all criminal prosecutions, the accused hath the right to demand the nature and cause of the accusation' against him. And this right, so secured, requires that the facts which constitute the alleged crime should be stated in the indictment with sufficient certainty, to enable the accused to know with what offense he is charged, and to prepare for his defense, both by a plea of not guilty and of former acquittal, or conviction."

In this Norris case, at pages 375, 376, the court said: "The question, therefore, is not whether the testimony establishes an offense bringing the defendant within the provisions of the statute, but whether the indictment sufficiently charges him with the commission of such offense; for, if not, it matters not how clear the proof may have been, it could not, under any just rule, establish more than the indictment itself charges. An indictment for a larceny committed in the county of Madison, in this state, in the usual form, and containing only the usual averments of such an indictment, wholly fails to give the defendant the least notice of an offense against the statute above quoted; for, to constitute an offense against the statute, there must be both a stealing of the property in another state or country, and a bringing of it into this state; and these facts, both being necessary to constitute the offense, must be sufficiently set forth in the indictment, in order not only to conform to a well-established rule of pleading, that the facts which constitute the crime or cause of action must be alleged with sufficient certainty, but that the accused may know what it is that he is called on to answer, so that he may prepare for his defense accordingly. Such, certainly, is the spirit of the Constitution, and the right which it intended to secure to the accused in criminal prosecutions, when it declares that `he hath the right to demand the nature and cause of the accusation' against him.

"The government, in ingrafting this provision upon its organic law, did not, as is by some erroneously supposed, proceed upon a principle of tenderness for those actually guilty of crime, but upon a more wise and humane principle, sanctioned by the experience of ages, that an innocent person may be unjustly accused of crime, and to effect him an ample opportunity when so accused to vindicate his innocence. If the government could be absolutely assured that none but the really guilty, would ever be put upon their trial for crime, it would perhaps not trouble itself to prescribe rules to govern such trials; but, as this is utterly impossible, it must act upon the principle, as far as possible, of protecting the innocent and punishing only the guilty; and almost all the rules which govern courts on the trials of criminal prosecutions, have their origin in this principle.

"The object is not to screen the guilty, but to protect the innocent; and, by departing from a rule supported by the clearest dictates of reason, while it may be true that the guilty will but seldom, if ever, escape punishment, yet it may be equally true that the innocent may, with almost equal facility, in many cases, be convicted, and unjustly suffer a punishment, designed by the law for criminals only."

See, also, Newcomb v. State, 37 Miss. 383; Williams v.State, 42 Miss. 328; Riley v. State, 43 Miss. 397;Thompson v. State, 51 Miss. 353.

The supreme court of the United States, in United States v.Simmons, 96 U.S. 360, 362, 24 L.Ed. 819, at page 820, said: "Where the offense is purely statutory, having no relation to the common law, it is, `as a general rule, sufficient in the indictment to charge the defendant with acts coming fully within the statutory description, in the substantial words of the statute, without any further expansion of the matter.' 1 Bishop, Crim. Proc., section 611, and authorities there cited. But to this general rule there is the qualification fundamental in the law of criminal procedure, that the accused must be apprised by the indictment, with reasonable certainty, of the nature of the accusation against him, to the end that he may prepare his defense, and plead the judgment as a bar to any subsequent prosecution for the same offense. An indictment not so framed is defective, although it may follow the language of the statute. Tested by these rules, the second count is insufficient. Since the defendant was not charged with using the still, boiler, and other vessels himself, but only with causing and procuring some one else to use them, the name of that person should have been given. It was neither impracticable nor unreasonably difficult to have done so. If the name of such person was unknown to the grand jurors, that fact should have been stated in the indictment."

In United States v. Garll, 105 U.S. 611, 26 L.Ed. 1135, the court, speaking through Mr. Justice GRAY, said: "In an indictment upon a statute, it is not sufficient to set forth the offense in the words of the statute, unless those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished; and the fact that the statute in question, read in the light of the common law, and of other statutes on the like matter, enables the court to infer the intent of the legislature, does not dispense with the necessity of alleging in the indictment all the facts necessary to bring the case within that intent. U.S. v. Cruickshank,92 U.S. 542 [23 L.Ed. 588], U.S. v. Simmons, 96 U.S. 360 [24 L.Ed. 819]," and other cases cited.

See, also, Cannon v. U.S., 116 U.S. 55, 6 S.Ct. 278, 29 L.Ed. 561.

In Pruitt v. State, 116 Miss. 33, 76 So. 761, it was held that an indictment under section 1309, Code of 1906 (Hemingway's Code, section 1042), which charged the offense in the language of the statute, was not sufficient, and that it was necessary for the indictment to set out the particular duty which the defendant was called upon to perform while intoxicated. At page 39 of 116 Miss. (76 So. 762) the court said:

"It is contended by the state that the indictment is sufficient, as it follows the language of the statute, and that, furthermore, the bill of particulars supplied the defect, if any, in the indictment. This contention cannot be upheld, as it is well settled in law in this state that the indictment must go further than the language of the statute where it is necessary to charge the facts in order to inform the accused of the nature and cause of the accusation. It clearly appears that the language of the statute here in question is such as to make it necessary for the indictment to definitely set out the facts sufficiently to inform the accused of the specific offense charged, so that he may properly prepare his defense thereto and be able to successfully plead former jeopardy."

The language of the statute there involved is as follows: "Any officer who shall be guilty of habitual drunkenness, or who shall be drunk while in the actual discharge of the duties of his office, or when called on to perform them, may be indicted therefor, and, upon conviction, shall be removed from office."

The indictment there charged: "That W.A. Pruitt, on the 26th day of February, 1917, in the county and district aforesaid, was the duly elected, qualified, and acting constable of justice of the peace beat No. 2 in said county, and, holding such office, was called upon to perform the duties thereof, and when so called upon was then and there unlawfully drunk, against the peace and dignity of the state of Mississippi."

The same principles have been announced in the cases of Jesse v. State, 28 Miss. 100; Sarah v. State, 28 Miss. 267, 61 Am. Dec. 544; Harrington v. State, 54 Miss. 490; Rawls v.State, 70 Miss. 739, 12 So. 584; Sullivan v. State,67 Miss. 346, 7 So. 275; State v. Southern Railway, 112 Miss. 23, 72 So. 837.

Tested by these principles, the indictment in the present case is wholly insufficient.

The indictment was demurred to on a number of grounds, among which were: That the indictment does not advise the defendant of the time or place when he is charged with having committed the crime of embezzlement; that it failed to allege that the money charged to have been embezzled, with an intent to keep and defraud the owner, or to injure some other person, or to benefit the defendant, or with an intent to cheat and defraud some other person, with a necessary element of the crime of embezzlement; another, that the indictment alleges no facts or circumstances which charge a commission of the crime by the defendant, there being no sufficient words in the statute to define the offense of embezzlement; another, that the indictment does not advise the defendant of the nature of the crime charged against him.

It will be seen that the indictment charges the appellant on a particular day with the embezzlement; he being charged then and there to be a duly qualified and elected acting superintendent of education of the county, and did then have in his possession, by virtue of his office, moneys to the amount and value of seventeen thousand five hundred sixty-seven dollars and sixty-three cents, the property of Sunflower county, Miss., which said money had theretofore come into his hands, no term of office being set forth and no period of time within which the money was collected, and no persons from whom collected, and no specification of the various kinds of county funds which had been collected. It is then charged that afterwards he did then and there feloniously embezzle said money, and unlawfully and fraudulently and feloniously convert the same to his own use. As there are various moneys from various funds that come into the county superintendent of education's hands or custody, or may do so, it was highly important to both him and to the ends of justice that some particular act be charged against him. In other words, the charge is most general as to time and amount. It is charged that he embezzled funds on the 8th day of September, 1924. There was no pretense in the trial that this was true. Indeed all the proof shows that he was not then county superintendent of education of Sunflower county, nor any other county officer. The court judicially knows that the term of county officers, including the superintendent of education, begins on the first Monday of January, 1924, and during the trial there was no pretense that the appellant was at any time from and after the first Monday in January, 1924, superintendent of education, or that he had any funds intrusted to him during that time, and it would have been a sufficient defense to have shown the fact that he was not an officer at such time. Time is of the essence of the offense in this case, because the very thing that makes it a crime at all under the branch of the statute under which he was indicted is that he was then a public officer.

In Hodnett v. State, 66 Miss. 26, 5 So. 518, it was held that the essence of an offense is some essential element or constituent without which it would not be an offense.

It is manifest that the prosecution must have failed without proof that appellant was a superintendent of education as alleged. It certainly could not be contended that he could be charged with being a public officer and with having received funds in that capacity, and tried and convicted for being a mere agent, intrusted with money. So the time, which is laid in the indictment, when he was a public officer, is the very essence of the offense here charged against appellant. It would, of course, have been permissible to have charged in the indictment that he was a public officer and county superintendent from January 1, 1917, to the date of the indictment, but some period of time must be specified, and the state, having elected to specify a particular date and not to cover a full term, will be held to the time alleged in the indictment. The particular funds ought to have been charged in the indictment, and the persons from whom received should have also been charged.

It is wholly unfair to make a person run the gauntlet of a series of years and of possible funds which he may have handled without any kind of specification. Manifestly a person, having nothing but the indictment to afford him information, could not prepare effectively for such a trial, and the indictment must give the information which is needed for that purpose. Is it possible that the law contemplates that a charge may be laid on a given date, and the accused be confronted with every day anterior thereto when he may have held office? Let it be noted that the indictment does not undertake to charge, as it might have done, that the appellant kept books and was required to keep them, and that such books showed a shortage of the given amount, being a book balance, or general balance of moneys collected as shown by the books and not paid in. Where no books are relied upon, and where the alleged embezzlements are funds that have not been entered on the books, it is necessary to specify the particulars as to funds, persons, and places.

The appellant was not indicted for failure to pay over to his successor funds under section 1142, Code of 1906 (Hemingway's Code, section 870), nor under section 1143, Code of 1906 (Hemingway's Code, section 871), nor under section 1144, Code of 1906 (Hemingway's Code, section 872). The state elected to charge a particular charge, to-wit, the conversion to his own use of moneys in his possession as an officer on a given date, and this indictment does not comply with the requirements of criminal pleading. It is too vague and uncertain and indefinite and general to comply with the standards of the Constitution. It does not allege a fraudulent intent to deprive the owner of the funds, and this it must do because the fraudulent intent is the very essence of the crime of embezzlement in the indictment. Of course, under another section above referred to, the failure to pay over to a successor at the expiration of his term of office is made a crime by statute. The mere failure to pay at that time is the gist of the offense, but the appellant is not indicted for that crime, and his conviction of the present crime attempted to be charged could not be pleaded in bar of a prosecution under any of the other sections referred to. The appellant could have been indicted for failure to keep a correct set of books, but he was not indicted for that offense, and the present prosecution did not answer a prosecution for such failure.

In 9 R.C.L., p. 1277, under the subject of "Embezzlement," subhead "Intent," in section 19, it is said:

"In the case of embezzlement, as in other crimes, a criminal intent is necessary. The defendant must have acted with felonious intent, and made an intentionally wrong disposal of the property, indicating a design to cheat and deceive the owner. Accordingly, the mere detention of money belonging to another, without a fraudulent intent to deprive that other of his property, does not, it has been held, constitute embezzlement; or the mere voluntary doing of an act, the unexpected consequence of which is to deprive the owner of his property, there being no intention that the act shall have such results, cannot constitute the crime. Furthermore, the felonious intent must exist at the time of the appropriation."

The case of State v. Jones, 102 Miss. 89, 58 So. 782, shows the correctness of my position. In that case Jones was indicted for embezzling under an indictment charging that he was president of the board of supervisors of Lincoln county, and, being such, that he received a sum of money from a named person for a fine and costs due the county by another person, which fine had been legally imposed and was a debt due the county when paid the defendant, and that said money was paid defendant for the county, and defendant did unlawfully and willfully and feloniously embezzle said money, the property of the county, and did convert said money to his own use, with intent to cheat and defraud the said county. It was held that this was not sufficient to charge a violation of the statute; it being the same statute involved in the present case.

What was said in the Hemingway case, 68 Miss. 371, 8 So. 317, with reference to the statute here involved, is not authority because the court expressly held that the indictment in that case did not fall under this statute, but fell under section 1144, Code of 1906 (Hemingway's Code, section 872), which was the same statute there involved, and which was construed in that case. What the court says about a statute not before it for construction of course is not authority. It is manifest, from a reading of the Hemingway case, that the court was proceeding upon the idea that the books of the defendant, kept by himself and under his direction, showed the commission of the crime. Furthermore, the indictment in that case expressly charged a fraudulent intent, and no part of the comment of the court upon the statute here involved is authority, and it is manifestly unsound as an expression of legal theory. Of course, if the decision were authority, then the statute would carry the construction there placed upon it, but it could not be authority because the indictment charged fraudulent intent, and the court held that the indictment was not predicated upon the statute here involved. The expression of this Hemingway case was also quoted in the McInniscase, 97 Miss. 280, 52 So. 634, but in that case the indictment there involved was in two counts, each of which charged the embezzlement to have been done with a fraudulent intent and for the purpose of cheating and defrauding the owner of the property. These cases are referred to in the majority opinion in the present case as authority for this holding, but this is the first judicial decision of the question, and is manifestly unsound.

Practically every indictment involving a violation of the section here under review has charged the fraudulent intent to deprive the owner of his property.

Under a statute like the one before us, it is of course possible and permissible to charge the doing of the one thing and the other embracing a number of things denounced by statute in an indictment, and, where that is done, the proof of one offense will sustain the indictment, under the doctrine announced inColeman v. State, 94 Miss. 860, 48 So. 181, and State v.Clark, 97 Miss. 806, 52 So. 691, wherein it is held that, where a statute makes it a crime to do one thing or another, and the person by one act does both of them or all of them, he violates the statute but once, and an indictment thereunder may charge in a second count that defendant was doing both, the conviction will be authorized by the establishment by the evidence of the violation of either. But I have never heard yet that the court could charge a person with one crime only, and convict him of a different thing from that for which he was indicted, even though the defendant's acts are made crimes in the same statute. Each act charged as being an offense in such cases must be sufficiently charged to give the information required by the Constitution. The person must be put on notice of what the state is going to try him for. He cannot be charged with one thing under an indictment and tried for another without violating the Constitution, as shown by the authorities referred to in the opening of this opinion.

I am therefore of the opinion that the demurrer to the indictment should have been sustained. It was, however, overruled, and the defendant thereupon made a motion for a bill of particulars, desiring to be informed of the time, places, persons, and funds involved in the charge. This motion was overruled by the court, and the majority opinion holds that the court was not in error in so doing.

A bill of particulars is often necessary in a trial of a cause for the protection of the rights of the parties and the limiting of the evidence with reference thereto, and should be granted in all cases where the charge or pleadings are general.

In 3 Ency. Pl. Pr., p. 523, it is said: "Independently of statutory provisions, the court may direct a bill of particulars of the claim of either party to be delivered to the adverse party, to enable him to prepare his pleadings and evidence for the real issue. A bill of particulars is appropriate in all descriptions of actions where the circumstances are such that justice demands that a party should be apprised of the nature and extent of the claim set up against him with greater particularity than is required by the rules of pleading. There is no inflexible rule as to the classes of cases in which a bill of particulars will be granted, but it rests within the sound judicial discretion of the court, to be exercised only in furtherance of justice."

Of course, the judicial discretion is not arbitrary, but should be exercised in the furtherance of justice according to the circumstances involved in the pleadings and issues.

Section 763, Code of 1906 (Hemingway's Code, section 546), reads as follows: "If the pleading in any case be in vague and general terms, or does not specify the circumstances or the occasions on which the pleader relies, and the opposite party satisfy the court, by affidavit, that for the purpose of prosecution or defense at the trial it is necessary that his adversary be more specific, the court may order a bill of particulars to be rendered, specifying time, place, and circumstances relied upon, and persons present, or in case of contractual demands, more particularly itemizing the claim; and thereafter on the trial evidence shall not be admissible of matters not so specified."

The language in this section is general and does not limit the action to any particular class of suits. It is under the chapter on circuit courts, and by section 687, Code of 1906 (Hemingway's Code, section 465), it is provided: "All things contained in this chapter, not restricted by their nature or by express provision to particular courts, shall be the rules of decision and proceeding in all courts whatsoever."

It is true that our court in Westbrooks v. State, 76 Miss. 710, 25 So. 491, held that a bill of particulars under this statute did not apply to criminal cases, but that does not prevent the common-law rule being applicable to criminal cases. The statute does not mandatorily confer any rights in criminal cases, but it is discretionary with the courts, and should be exercised in the interest of fairness and justice, whenever and wherever the circumstances of the charge or case make it the fair thing to do. It seems to me, however, that the decision of the Westbrooks case "stuck in the bark," so to speak. At common law, in cases of barratry and other offenses general in their nature, such as being a common barrator, a common scold, and a common vagrant, a bill of particulars was necessary and proper. The principles involved were that, whenever the charge was general (that is, too general to give specific information), a bill of particulars was granted, and it certainly ought to be applied to that class of statutory offenses which are general in their nature.

It is true the indictment ought to be specific enough to give information of the cause and nature of the accusation, but the bill of particulars would be useful and proper in many cases to guard against excessive expense in preparing against possible evidence from a great number of diverse persons, circumstances, and things of that kind. Other courts, including the United States supreme court, require bills of particulars in proper cases, even in criminal cases. The cases are collected in the American Digest, First and Second Decennial Edition, title "Indictment and Information," Key No. 121; Cent. Dig. title "Indictment," sections 316-320.

In Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890, the United States supreme court held that, if it appears at the trial to be essential in the preparation of the defense to an indictment for receiving stolen property, that the defendant should know the name of the person by whom the government intends to prove from whom the property was received, the court may require the prosecution to give a bill of particulars.

In Thalheim v. State, 38 Fla. 169, 20 So. 938, it was held that, where an indictment for embezzlement alleges the offense in a general way, as permitted by Revised Statutes, section 2897, a bill of particulars should be furnished the defendant; that, where an indictment is so general as to give defendant inadequate notice of the charge, the court may, on his application, independent of statute, require the prosecution to furnish a bill of particulars.

In Sullivan v. People, 108 Ill. App. 328, it was held that, if an indictment for conspiracy is in mere general forms, not charging overt acts, the course is to order a specification of the particulars, it being within the discretion of the court whether to grant it or not, its refusal cannot be held to be reversible error.

In New Orleans v. Chappuis, 105 La. 179, 29 So. 721, the Louisiana court held that, where the nature of an offense charged is general, the court may require the prosecuting officer to furnish accused a bill of particulars showing the particular facts relied on.

In State v. Maloney, 115 La. 498, 39 So. 539, it was held that, where the parties are indicted under a statute very general in its terms, they may obtain relief by requiring a bill of particulars of the charge against them.

In People v. Jaehne, 4 N.Y. Cr. R. 161, it was held that it is only when the indictment is so general as to give accused inadequate notice of the charge he is expected to meet that he is entitled to a bill of particulars.

It is true that, when the defendant asked for a bill of particulars, and the court overruled the motion, the district attorney stated that he would rely upon the report of an audit of Sunflower county, Miss., and that the defendant had been furnished with a copy of this report. This audit consists largely of figures and items, including receipt warrant numbers, and names of persons who had dealt with sixteenth section lands. The book contains eighty-four pages; many of the pages being double pages, and practically all filled with matters of account. The defendant then requested a continuance until he could examine the report, which continuance was refused. The state relied largely upon proof of payments of sixteenth section moneys to the appellant while he was superintendent of education of Sunflower county, and the failure of the appellant to pay the funds so received into the county depository, and proved some admissions by the defendand that certain amounts were collected and not paid in. The defendant undertook to prove that he applied all the funds received by him, which were not paid in to the county depository, to various public schools and to various contracts for building and equipping schools and to municipalities entitled to share in such funds. He testified that he had not converted the county's funds to his own use, and that he had applied the funds which had passed through his hands to the public institutions of the county. He was unable on examination to produce all the checks which he had given against the funds. He testified that he placed the public funds in the bank with his private funds in one account, and that he did not have time to locate all of the checks, and could not account specifically for some of the funds.

The statute under which the superintendent of education acted in collecting these funds is chapter 170, Hemingway's Supp. of 1921, sections 7530a to 7530s, being chapter 177, Laws of 1918, and section 7530i thereof, provides:

"It shall be the duty of the county superintendent of education to collect all rents due for the lease of sixteenth section school lands, and all interest and principal due on loans made out of the sixteenth section school funds of this county, and to account for the same to the board of supervisors. That the board of supervisors shall turn all such funds over to the county treasurer, taking the usual vouchers therefor, and see that funds of each sixteenth section is properly credited to it; provided that all evidences of indebtedness shall include a provision for the payment of ten per cent. attorney's fees in case of default."

It will be seen from this chapter and sections that it is the duty of the county superintendent of education to collect the rents due from the lease of sixteenth section school lands, and for all interest and principal due on loans made from sixteenth section school funds in his county, and to account for the same to the board of supervisors. That the board of supervisors shall turn over all such funds to the county treasurer, taking the usual vouchers therefor, and see that funds of each sixteenth section are properly credited to it. It will be seen that the statute does not make it the duty of the superintendent of education to put these funds in the county depository, or to apply them to the several townships, but his duty is to account to the board of supervisors.

The state failed to make any proof as to any failure to report to the board of supervisors and to account for such funds to such board. It proceeded upon the idea that, when the accused failed to pay the funds into the county depository, he was guilty of embezzlement, or at least that it devolved upon him to exonerate himself. It proceeded also upon the idea that, if he deposited the funds in a bank other than a depository of the county in his personal name, he was guilty of embezzlement.

Of course, the county superintendent of education ought not to have placed these funds to his own account, nor mingled them with his own funds, but I think that, of itself, would not make him guilty of embezzlement. If he deposited them in a bank with thebona fide intention of applying them to the proper public purpose, and did not intend to use them for his personal use, he would not be guilty.

There is no proof of any demand by the board of supervisors for a settlement with the appellant, nor is he indicted for a failure to make settlement with the board.

In Lincoln County v. Green, 111 Miss. 32, 71 So. 171, it was held that a superintendent is not liable to suit for funds which he had in good faith applied to public purposes and not to his own use, although he may have applied some of the funds in violation of law. It was held that the superintendent of education was vested with some discretion of a judicial nature about applying funds intrusted to him, and that he was not liable for an error in judgment when exercising such discretion. The court quoted from United States supreme court in the case ofKendall v. Stokes, 3 How. 87, 11 L.Ed. 506, as follows:

"A public officer is not liable to an action if he falls into error in a case where the act to be done is not merely a ministerial one, but is one in relation to which it is his duty to exercise judgment and discretion, even although an individual may suffer by his mistake. A contrary principle would indeed be pregnant with the greatest mischiefs."

Our court then said (111 Miss. page 35 [71 So. 172]): "It will be borne in mind that the several matters complained of in the instant case were items of business within the jurisdiction of the county superintendent, and the services charged to have been illegally paid for were services inuring to the benefit of the county, and not to Mr. Green; and the payments actually made were, in the language of Judge CAMPBELL, in reference to `objects for which an appropriation of money is authorized.' The superintendent is vested with both executive and judicial powers, and the efficiency of the public school system requires that large administrative powers be vested in him. In view of the fact, therefore, that the work paid for by the superintendent and the several alleged irregularities were within the jurisdiction of his office and no corruption is charged, the bill fails to state a cause of action."

It seems that what Mr. Green was held not responsible for civilly in that case, in the present case is adjudged a felony in another county superintendent acting largely in the same way, and he is sentenced to five years in the penitentiary.

I desire to make a few observations upon the theories embodied in some of the instructions.

It will be noted from a reading of the instructions that the time in which the alleged embezzlements took place was not limited to periods within two years from the finding of the indictment. The first instruction told the jury that on or after the 28th day of March, 1918, it became the duty of the county superintendent of education to collect rents due on sixteenth section lands, and to account for the same to the board of supervisors. In another instruction the jury were told that, if there came into his possession and care one of the several sums of money testified about in the case and by virtue of his office, and that he feloniously and fraudulently converted or appropriated the same to his own use with intent to deprive the county of the money, he was guilty. In another instruction the jury were told that it was not necessary to make out a case of embezzlement to prove that the defendant converted the exact amount of money alleged, but that, if they believed from the evidence, beyond a reasonable doubt, that, while serving as county superintendent of education for Sunflower county, the defendant unlawfully, willfully, and feloniously embezzled the amount set out in the indictment, or any amount in excess of twenty-five dollars, he was guilty. The state also instructed the jury that, if there came into his possession and care various amounts of money, totalling twenty-five dollars, or more than twenty-five dollars, and that he unlawfully, etc., appropriated any one or all of the sums totalling more than twenty-five dollars to his own use, etc., he was guilty.

The proof showed that the defendant was county superintendent of education from 1917 to 1923. Some of the items came into his possession more than two years prior to the finding of the indictment. The accounts ran back to the year 1918, and nowhere were the jury limited in the time that they might find an embezzlement. In other words, the theory of the state was that, with the charge of converting the funds on the 8th day of September, 1924, the state could go back any length of time while the defendant was in office, and that it could select hundreds of different items which came into his possession and leave the jury to find any one of them, leaving the jury in the attitude that one juror could convict for one item, another juror could convict for another item, thus making it possible for each juror to believe that defendant embezzled a different item from what the other jurors might believe, bringing the case squarely within the evils so vividly portrayed by this court in King v. State,66 Miss. 502, 6 So. 188.

It was, of course, highly improper for the defendant to handle the funds in the manner that he did, and I do not think he was entitled to the peremptory instruction requested, although his testimony that all of the funds went to public purposes was not specifically contradicted. Having mingled those funds with his own, and being unable to give a detailed and specific account of the disposition of all of them, it was a question for the jury. Every public officer handling public funds ought to comply with the legal regulations pertaining to his office. At no place in the legal fields is it more dangerous to be wiser than the law than when dealing with public funds by virtue of office, but, in the prosecution for such offenses as may result from failure to comply with the law, the defendant should be given specific information as to what particular moneys came into his possession, and from what sources, and to what fund, they should be applied. The indictment in this case, in my opinion, is utterly insufficient to furnish this information.