Commonwealth v. Fisher. on Elections disregarding irregularities touching the man- Judges DuRelle and White concur in this dissent. CASE 64-INDICTMENT AGAINST F. P. FISHER FOR EMBEZZLEMENT.— Commonwealth v. Fisher. APPEAL FROM CARLISLE CIRCUIT COURT. JUDGMENT DISMISSING INDICTMENT ON DEMURRER AND COMMON- EMBEZZLEMENT-MISAPPROPRIATION BY SHERIFF OF TAXES COLLECTED Held: 1. Under Kentucky Statutes, section 1205, providing that if any person having the control, custody, or distinct possession of any money belonging to or for the use of any county, and under any trust or duty "to keep, return, deliver, cancel, destroy or specifically apply the same, or any part thereof, shall, in violation of such trust or duty, willfully misapply, misappropriate, conceal, use, loan or otherwise wrongfully and fraudulently dispose of such money . . for his own purposes or use of another, with intent to deprive the owner or authority of the same, or of any part thereof, for the benfit of the wrongdoer or of any other person," such person Commonwealth v. Fisher. shall be confined in the penitentiary, an indictment against a sheriff for embezzlement alleged to have been committed by misappropriating the county levy collected by him need not allege that there had been a settlement with the defendant or any demand upon or direction to him to pay over the money in his hands. 2. An officer may be guilty of embezzlement though he was entitled to a commission out of the money collected and used by him. H. J. MOORMAN, COMMONWEALTH'S ATTORNEY, FIRST DISTRICT, FOR COMMONWEALTH. The only objection urged to the indictment in the lower court, and upon which the court sustained the demurrer thereto, is that a sheriff who misapplies or fraudulently appropriates taxes collected by him, is not embraced by section 1205, Kentucky Statutes, which so far as applicable, is as follows: "If any person having the custody, control or distinct possession of any money . . . belonging to or for the use of the State or any county, . and under any trust or duty, to keep, return, deliver, or specifically apply the same or any part thereof, shall, in violation of such trust or duty, willfully misapply, misappropriate, conceal, use, loan or otherwise wrongfully and fraudulently dispose of such money, or any part thereof, for his own purpose, or use of another, with the intent to deprive the owner or authority of the same or any part thereof, for the benefit of the wrongdoer or any other person, such person so offending shall be confined, &c." The court held that the indictment was good in form but does not apply to a sheriff. We contend that the purpose and intention of the Legislature in passing this statute was to include and punish sheriffs and all other officers who fraudulently appropriate money collected by them for the State or county to their own use, and thus remedy this fast growing evil. AUTHORITIES CITED. Kentucky Statutes, sec. 1205; Com. v. Turner, 8 Bush, 2; Hinkle v. Com., 23 R., 1988; Bodley v. Com., 17 R., 561; Wharton's Cr. Law (10 ed.) secs. 1012, 1016; Snapp v. Com., 6 R., 34; Clark v. Com., 16 R., 703; Am. & Eng. Ency., vol. 6 (1st ed.) sec. 4, pp. 475-6. BUGG & WICKLIFFE, FOR APPELLANT. H. J. MOORMAN & C. J. PRATT, ATTORNEY GENERAL, OF COUNSEL. Commonwealth v. Fisher. POINTS AND AUTHORITIES. Section 4145, Kentucky Statutes, is not inconsistent with section 1205, Kentucky Statutes, and sheriffs may commit either or both offenses. One of these sections is designed by the Legislature to punish a sheriff for misapplying funds, to some other source than the one that by law it should be applied. The other is designed to punish any person, including sheriffs, for misapplying, misappropriating, and conversion to his own use, with the criminal intent to deprive the owner of its use and possession. Sheriffs have not such an ownership of the tax books, as makes them incapable of committing the crime of embezzlement, under section 1205, Kentucky Statutes. Even if sheriffs had such an ownership, or interest at common law, as to render them incapable of committing this of fense at common law, the statute abrogates the common law, and it would have no application to the case at bar. AUTHORITIES CITED. Sec. 1205, Kentucky Statutes; sec. 4145, Kentucky Statutes; Commonwealth v. Bodley, 17 Ky. Law Rep., 561; Lewis V. Commonwealth, 11 Ky. Law Rep., 421; Snapp v. Commonwealth, 82 Ky. P., 173, et seq., Robertson's Crim. L. & Procedure, vol. 1, pp. 648-49. J M. NICHOLS & SON, AND JOHN W. RAY, ATTORNEYS FOR AP PELLEE. We submit that there are two fatal defects in the indictment: 1. The statute (sec. 1205) does not reach a tax collector. 2. There is no allegation of a demand and refusal to pay to any properly authorized person. AUTHORITIES CITED. Snapp v. Com., 82 Ky., 185; A. & E. Ency. of Law, vol. 10, (2d ed.) p. 985, 1005; Com. v. Starns, 2 Met., 343; Stone v. Com., 46 S. W., 721; Owens v. Ballard County Court, 8 Bush, 611; Com. v. Lewis, 12 S. W., 266; Kentucky Statutes, secs. 1205, 4145. OPINION OF THE COURT BY CHIEF JUSTICE GUFFY-REVERSING. The grand jury of the county of Carlisle returned an indictment against F. P. Fisher charging him with the offense of embezzlement. The specifications in the indictment in Commonwealth v. Fisher. apt language charges that the said Fisher, in said county, on the 28th of October, 1901, and before the finding of this indictment, was, during and for the years of 1898, 1899, 1900, and 1901, the duly elected and qualified acting sheriff of Carlisle county, and that he was elected to said office and that as sheriff he had the control, custody, and distinct possession of the money and funds belonging to said county of Carlisle, under the duty and trust to keep said money and funds, to pay and apply the same as ordered, and upon the orders of the fiscal and county court of said county. It is further alleged in the indictment that the fiscal court, in October, 1898, levied an ad valorem tax of 40 cents on each $100 worth of taxable property in said county, and a poll tax of 50 cents on each male citizen of the age of 21 years, and a poll tax of $1 upon each male citizen between the ages of 18 and 50 years, for the purpose of defraying the expenses of the county, and paying claims allowed by said court, and for road and bridge purposes; that the levy in all amounted to the sum of $10,585.40, after deducting the delinquent list allowed by said fiscal court, and the sheriff's commission for collecting same, and all other credits to which said sheriff was entitled. It is further alleged that in October, 1899, the said fiscal court levied an ad valorem tax of 42 cents on each $100 worth of property in said county, and a similar poll tax was levied for similar purposes, and after deducting the delinquent list allowed by said fiscal court, and deducting the sheriff's commission for collecting same, and all other credits to which the sheriff was entitled, amounted to the sum of $10,637.60. making a total of taxes levied by said court in the years 1898 and 1899 for both county and bridge purposes, exclusive of delinquent lists and sheriff's commission and all other credits to which said sheriff was entitled, of the Commonwealth v. Fisher. sum of $21,223. It is further alleged that said taxes were duly levied and certified to said Fisher, sheriff, as aforesaid, by the fiscal court for collection, and that said Fisher did receive the tax books of and for each of the aforesaid levies, and did collect, receive, and have in his possession the taxes levied as aforesaid, amounting, as aforesaid, for the two years aforesaid, to the sum of $21,223, which money belonged to and was for the use of the county of Carlisle, and was in the possession of said Fisher, sheriff, aforesaid, under the trust and duty to keep, pay, and deliver upon the order and direction of the said fiscal and county courts of Carlisle county. It is further alleged as follows: "That said F. P. Fisher, sheriff, as aforesaid, having collected said tax money, and having the same in his possession as aforesaid under the trust and duty aforesaid, did, in violation of said trust and duty, willfully and unlawfully embezzle, misapply, misappropriate, conceal, use, loan, and otherwise wrongfully and fraudulently dispose of the sum of $8,868.97 of said money so belonging to said county as aforesaid, for his own use and purposes, with the intent to deprive the said county of Carlisle of same, and for his, the said Fisher's benefit; against the peace and dignity of the Commonwealth of Kentucky." The appellee entered a demurrer to the indictment, which was sustained by the court, and said indictment was dismissed absolutely; to all of which plaintiff objected and excepted, and prayed an appeal to the court of appeals, which was granted. The indictment was evidently found under the provision of section 1205, Kentucky Statutes, which reads as follows: "If any person having the control, custody or distinct possession of any money, bank notes, county, city or town bonds, or Kentucky State bonds, or United States bonds, or treasury notes, legal tender notes, promissory notes, |