
    M. M. Fortenberry v. The State.
    Criminal Law. Embezzlement in office. Official character, how established.
    
    One who has been duly elected to an office, and assumed the functions thereof, cannot defend against the charge of embezzlement in office on the ground that, having failed to take the oath of office prescribed by law, he was a mere usurper, and not an officer de jure. The fact of holding the office fixed his liability to punishment for embezzlement.
    Error to the Circuit Court of Lawrence County.
    Hon. A. G-. Mayers, Judge.
    The plaintiff in error was indicted and convicted for embezzling county funds during his incumbency of the office of treasurer of Lawrence County. He based his defence upon the ground that he was not a legal officer, but a mere usurper, because he did not qualify by taking the oath of office prescribed by law. He had been duly elected, and had assumed the powers and duties of the office.
    
      Bentonville Taylor, for the plaintiff in error.
    Fortenberry was not an officer de jure. Const. Miss., art. 12, sect. 26; 2 Bouv. L. Die. 260; Cruise’s Dig., index, “Officer;” 3 Serg. & R. 149. He could not be legally indicted under the statute. Code 1871, sect. 2550.
    2. O. Oatchings, Attorney-General, for the State.
    The plaintiff in error was an officer de facto. Kimble, Raymond & Go. v. Alcorn, 45 Miss. 151; Plymouth v. Painter, 17 Conn. 585; Rice v. The Commonwealth, 3 Bush, 14; Hooper v. Goodwin, 48 Me. 79; 7 Jones, 107 ; 37 Me. 423. Such officer is liable to indictment for embezzlement. The State v. McHntyre, 3 Ired. 174; The State v. Mayberry, 3 Strobh. 144; Diggs v. The State, 49 Ala. 323; 1 Bishop’s Cr. Law, 917.
   Campbell, J.,

delivered the opinion of the court.

The fact that Fortenberry held the office made him liable to punishment for embezzlement. His failure to take the oath of office did not exempt him from liability for official misconduct. 1 Bishop’s Cr. Law, sect. 464; 3 Greenl. on Ev., sect. 483; 2 Archb. Cr. Pr. & Pl. 463, top p. 1363; The State v. Sellers, 7 Rich. 368; The State v. Mayberry, 3 Strobh. 144; The State v. McEntyre, 3 Ired. 171; Diggs v. The State, 49 Ala. 311; Rex v. Barrett, 6 Car. & P. 124; Rex v. Gardner, 2 Camp. N. P. 513.

Judgment affirmed.  