State v. Yeates

McGtowen, J.,

delivered, the opinion of the court.

This is an appeal from the circuit court of the second district of Coahoma county, Miss., from a judgment sustaining a demurrer to an indictment charging the appellee with the crime of embezzlement of one mule of the value of one hundred dollars. Leaving off the formal part, the indictment is as follows:

“That Dr. N. Yeates, late of the county aforesaid, on the 7th day of January, A. D., 1924, with force and arms in the district and county aforesaid, and within the jurisdiction of this court, he being then and there a duly elected, qualified, and acting supervisor of Coahoma county, Miss., in and for beat 1 of the said First judicial district of Coahoma county, Miss., did then and there, by virtue of his said office of supervisor aforesaid, and while acting and serving as such supervisor aforesaid, did then and there, have in his hands, in his charge, and under his control, one certain mule of the value of one hundred dollars in good and lawful money of the United States of America, a further description of which said mule is to the grand jurors unknown, the property of Coahoma county, Miss., did then and there, with the willful, unlawful, fraudulent, and felonious intent of him the said Dr. N. Yeates then and there, to cheat and defraud the county of Coahoma, Miss., aforesaid, of its money and property aforesaid, willfully, unlawfully, fraudulently, and feloniously embezzle the same, and did then and there willfully, unlawfully, fraudulently, and feloniously conceal, secrete, and convert to his own use.” There are eleven grounds of demurrer, all of which we shall not quote or set out in the record.

The demurrer challenges the indictment because it names Dr. N. Yeates as supervisor of beat 1, etc., when the demurrer contends that the indictment should have charged that he was a member of the board of supervisors of district 1, etc. Considering these together, we do not think there is any merit to these technical objections, and, the district attorney having requested the court for permission to amend the indictment in these respects, the court, in our opinion, should have permitted the amendments, but we think the phrase used is suffi ciently descriptive of the office held by Dr. Yeates. True it is that the statute and chapter on boards of supervisors refers to this officer as a member of the board of supervisors, but in the road chapter we find the same officer described as a “supervisor.” So that we think the defendant was fully informed as to the office which he held, and should not be discharged upon these grounds of demurrer.

The indictment is- next challenged because it. charges the date of the alleged crime as the 7th day of January, 1924, and that the defendant’s term of office had expired on the 6th day of January. It will be noted that the body of the indictment charges the crime as having been committed while he was in office, and this mere clerical error in the naming and fixing of the date will not avail to discharge the defendant as time is not of the essence of the offense. See section 1184, Hemingway’s Code (section 1428, Code of 1906).

The next challenge of the indictment is that the defendant was not authorized by law to have or hold in his possession any property of Coahoma county, and the indictment shows that he had no property in his hands or possession as an officer of said county, and that he could not have been guilty of embezzlement as sought to be charged against him, or that the property came into his possession in his capacity as a public officer, and that, while so in his hands, he embezzled the same. The indictment very clearly recites that he did then and there, by virtue of his said office of supervisor aforesaid, and while acting and serving as such supervisor aforesaid, did then and there have in his hands, in his charge, and under his control, one certain mule. The language is broad enough to charge the defendant with having the mule in his possession by virtue of his office; that it was in his charge and under his control; and that it was the property of Coahoma county.

The only question raised by these sections of the demurrer is that no property could lawfully come into the possession of a member of the board of supervisors by virtue of his office or by color of his office, and because, if any such property came into the possession of a supervisor, it was in possession of the entire board. The latter statement is not worthy of serious notice, because, if the entire board came into the possession of property, and one member thereof converted the property to his own use, and committed the crime of embezzlement, we know of no authority that would relieve him, because, forsooth, others had a right to the possession as well as he of the property. But does property come into possession of a member of the board of supervisors lawfully?

Section 7151, Hemingway’s Code, authorizes the board of supervisors to purchase teams, implements, and material, and employ labor and work, and construct public roads and bridges under the direction of a competent commissioner, and the board of supervisors may do any and all things necessary to be done to work and construct the public roads, etc. In the opinion of the court this section authorizing the purchase and authorizing the board to do any and all things necessary to the carrying out of the scheme proposed clearly puts the possession of the property of the county used under that section in the possession of the board, and, if one member of the board appropriates property in the board’s possession to his own use and embezzles same, he may be indicted and punished therefor. But it may be argued that this, statute authorizes this to be done under the direction of a competent commissioner. But the power to purchase implies all that is necessary to the completion of a sale, and in our opinion will put the possession of the property thus purchased in the board. But section 7155, Hemingway’s Code, authorizes the purchase of teams, implements, and material, and does not require that-the board employ any person, but that the board itself would do all things necessary to have the work done on the road. And naturally each supervisor would have control of the work, material, and teams used in his particular district, and, if while the property was thus in his possession, he sold same, and converted the money to his own use, he would be in possession of the property of the county by virtue of his office as a supervisor. Certainly the possession of the county’s property purchased by the board of supervisors not designated in some other person would be in the purchasing’ agency, to-wit, the board of supervisors. We know that costly machines, teams, and implements are being purchased throughout the state of Mississippi by the boards of supervisors, and under the sections we have cited the possession of the property of the county thus acquired is bound to be in the members of the board of supervisors. It comes to them by virtue of their office,- and, if they embezzle it, they should be held to strict account.

We think the indictment sufficiently charged the defendant with the crime of embezzlement, and we do not think that any of the objections urged are sound, or that there is any fatal defect in the indictment. It sufficiently charges the crime of embezzlement under section 869, Hemingway’s Code (section 1141, Code of 1906). The demurrer to the indictment should not have been sustained'by the court. What we have said with reference to the indictment for the embezzlement of the mule applies to the separate indictment in the record charging the defendant with the embezzlement of three hundred and seventy gallons of gasoline.

Reversed and remanded.