
    No. 10,047.
    The State of Louisiana vs. Will A. Strong.
    An indictment, or information, which contains an averment negativing prescription, presents a material issue of facts, which a jury can alone decide.
    It is the duty of the Auditor of Public Accounts to direct prosecutions in the name of the State, against officers or individuals who, by any means, become possessed of public money and fail to pay the same upon due and proper demand therefor.
    On vhe trial of such offenders as may he charged with having possessed themselves of a portion of the public money, by means of Auditor’s warrants drawn upon the State Treasury, a transcript from his books is competent evidence
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Burgess, J.
    
      M. J. Cunningham, Attorney General, and L. J). Beale, District Attorney, for the State, Appellee :
    When the trial judge refuses a continuance for want of due diligence in procuring the attendance of absent witnesses, his ruling will not he disturbed, unless it clearly appear that his discretion has been abused. 37 Ann. 128, 774, 786 ; 31 Ann. 179, 408; 34 Ann, 381; 34 Ann. 679 ; 36 Ann. 15J, 852, 872.
    
      As non-resident witnesses can be summoned or attached in vacation (R.. S. 1020), it is not duo diligence for‘'defendant to wait till court moots and his case is fixed for trial to make the necessary affidavit to procure subpoenas for witnesses residing in distant pan&lics. \v\
    A defendant failing to give tbe city address of a witness residing in RowOrleaus, does not' use duo di igeucfe to procure bis attendance.
    Defendant is not entitled to a continuance on account of tbe absence of witness whose evidence is mateiial, aiitbits materiality must appear from tho affidavits for continuanco and attachments. ¿ *
    When dcfei dant is prosecuted for the embezzlement of monoy actually received, evidence as to amounts due him and never paid him is not material or relevant. ' -
    Defendant is not entitled ts a continuance when the facts claimed to be provable by tho absent witnesses ootild bo established by other e/idence.
    Tho Attorney General engaged in the prosecution cannot be excludod from the court-room on the ground that lío is a witness in the case. In any case the power to exclude witnesses is discretionary. Wharton’s PI. and Pr., § 5CD; Bishop's Or. Pro. §§ 108G, 1887.
    A Secretary of State loaeiving the proceeds of election tickets, paid for by State, and by him sold under the provisions of Act 101 of 1882, is indictable for its embezzlement under 11. S. 903.
    A person embezzling money by viitue and under color of his office or employment cannot be beard to question the light of his principal, or tho legality of bis own act in receiving it. Wharton’s Cr. L. (Sth ed.), §§ 1024, 1023, 1038.
    R. R. 176, 17ih paragraph, empowers the Auditor to direct prosecutions, by civil action, for debts due the State, and has no' reference to prosecutions for crime.
    Piescription' begins to run .in favor of an offender only from tbe time his, offense is mado. known to a public officer having the power to put the machinery of the courts in motion for iis punishment, and this includes only tho Attorney General, the District; Attorncjr, the grand jury and a magistrate, perhaps, if an affidavit is made before him. R. S. 98G. And facts must be made known to the officer which constitute an offenso.
    Tbe question as to whether a verdict is contrary to the law and evidence, and the question as to the amount embezzled, in piosecutions for embezzlement, are questions of facts, not subject to loview on appeal.
    When tl«e information charges tbe embezzlement of a specific amount, and the jury finds tbe accused “ guilty as charged,” tho verdict is for the amount charged in the bill.
    When the iuibimation charges the embezzlement, on tho day the officers term expired, of money received by him at different dates, the date of the embezzlement is specifically ckargal. But even if tbe bill is defective in this particular, defeudfini’s remedy was to demand a bill of particulars beib'e the tiial, and such defect cannot be taken advantago of by motion in airest. Wharton’s Or. B. (8th ed.), § 1048, and authorities cited; Wk. PI. and Pi-., §§ 157, 702, 703, 407 b; Bishop’s Or. Pro., §§ G43 to G46.
    Id is unnecessary to allege the particular maimer in which the embezzlement was committed. Various amounts may have been embezzled in different ways, but failure to pay demand is sufficientprhna facie pioof of embezzlement of the whole. R. S. 903.
    Ib is unnecessary to allege by whom tho demand "was mado; but any defect in the proof as tbe authority of tho officer making tho demand would have to be taken advantage of by objection to evidence, or by charge requested, and cannot be reached by motion in arrest.
    An information charging tho embezzlement of tho proceeds of election tickets sold by defendant, is not open to tho charge of duplicity, because it explains that said election tickets bad been paid for with money drawn from the Treasury — which explanation was necessary to show tho State's tight to the proceeds.
    
      The prescription of six months against prosecutions for fines or forfeitures under R. S. 986, docs not apply to ciimes and offenses merely because the penalty therefor, or part thereof, may be a fine.
    Tinder that section only the presciiption of twelve months bars prosecution for crimes and offenses, whatever ho the character of the penalty.
    The object of a prosecution for embe zzlemeut is to punish the cime, and not to recover the fine, although it is a necessary part of the penalty. 13 Ann. 369; 15 Ann. 499.
    Sections 903 and 9C4 of the Revised Siatutes ate not repealed by Sec. 88 of Act Ho. 68 of 3870, or by Sec. 90 of Act 4*2 of 1871.
    
      G. W. Buckner, K. A. Gross, B. W. Sutherlin, and Young <£• Thatcher, for Defendant and Appellant:
    The off nse charged was made "known to the Arditorraore than twelve months next precede ii g the filing the infonuation, and is therefore prescribed. Section 37G, paragraph 7, It. S.; Act 42 of 1871, section 52. Case of State vs. H. C. Dibble, Ho. 1847, Sup. Criminal Com t of Parish of Orleans.
    The judgment should be arrested, because sections 903, 901 R. S., are repealed by section 88, Act G8 of 1870, and section 82 of Act 42 oi 1871. which provide that th'e prosecution, shall be by indictment, and therefore indictment is the only method allowed. Hawkins’ Pleas of the Ciown. vol. 2, pp. 301, 302; 1 Burrow-», pp. 544, 545; 2 Burrows, p. 803; 1 Crauch 252; "Woods’ TT. S. Circuit R ports, vol. 3, p. 227; Woodbury & Minots’ Mass. Reports, vol. 3, p. 345 ; 7 Robinson 173; State vs. H. C. Dibble, Sup. Court, par» isk of Orleans, Ho. 1443.
    The charge of the trial judge, that no one but 1ke Attorney General, District Attorney oi magistrate with criminal jurisdiction, is authorized to direct a criminal prosecution, is wrong, and misled the jury. R. S., Secs. 994,176; Act 42 of 1871, Sec. 92.
    The verdict is nugatory, because a special verdict was necessary where the punishment, is imprisonment', fiue and restoration. 5 Ann. 329; 2 Eastman’s Pleas of the Crown, 708, 784 ; 5 Burrows 2C62.
   The opinion of the Court was delivered by

Watkixs, J.

The defendant is proceeded against by information, under Sec. 903 of the Revised Statutes, on the charge of embezzlement of public money, property of the State, while he was Secretary of State; and from a verdict of guilty and sentence by the court to fine and imprisonment at hard labor, he has appealed, and rests his claim to relief upon several bills of exception taken to the rulings of the trial judge, refusing to prant a continuance to obtain the attendance of absent witnesses; declining to give him a new trial; refusing to give to the jury certain special charges, and refusing to arrest the judgment.

I.

Counsel for the accused sought to arrest the j udgment and sentence of the court on the ground that Sec. 903 ct sequentes of the Revised Statutes, under which this information was found, had been repealed by See. 88 of Act 68 of 1870, and Sec. 90 of Act 42 of 1871, both of which provide for the prosecution of such cases by indictment only, and that he cannot be legally punished under verdict and sentence on-information, as demanded.

/,sWe are fully satisfied, from a careful examination of those acts, and comparisons made with the provisions, of the sections of the Revised Statutes referred to, that there is no inconsistency between them, and that the latter is not repealed; As this prosecution was instituted under those sections, the provisions of ihose acts are not necessarily inyolved. The Constitution declares that prosecutions may be by indictment or information. Art. 5.

II.

.The defendant tendered a plea of prescription of one year, and demanded his discharge from prosecution on that ground, without avail, apd. renews that resistance here.

The information charges that the defendant did, on the 22d of May, 1884, then and there being Secretary of State, ombezzle the sum of $.4251 85, money belonging to the State, “which money he, the said Will. A. Strong, had theretofore, to-wit :• From the 15th day of August, 1882, to the 5th day of May, 1884, both inclusive, received, and been entrusted with in his said official capacity, and under color and by virtue of his said office of Secretary of .State, as the proceeds of election tickets sold by him, and for his account, under the provisions of Act 101 of 1882, which election tickets had been paid for with the money of the State, drawn from the State Treasury, out of the appropriation made for election purposes, under the appropriation bill of 1882, Act 63 of said year, on Auditor’s warrants, issued on the orders and vouchers of said Strong, from the 6th day of September, 1882, to the 28th of April, 1884, both inclusive ; ..which money, to-wit, the sum of $4251 85, the property of the State of Louisiana, as aforesaid, he, the said Will. A. Strong, has failed to pay, or account for to the State, notwithstanding due and legal demand made upon him therefor; and which money the said Strong did then and there, to-wit; the 22d day of May, 1884, feloniously, wrongfully, fraudulently and corruptly use, dispose of, conceal, convert to his own use, and embezzle.”

. :The information contains an averment to the effect that it was presented and filed within one year next after the offense had been made known to a public officer having power to direct a prosecution.

As thus presented, the evidence of prescription vel non was properly submitted to the jury.

It was a proper issue for them to try. It was a question of fact appertaining to the merits of the controversy, which could be passed upon by the jury alone. 36 Ann. 975, State vs. Victor; 7 Ann. 255, State vs. Foster.

During the progress of the trial it became an important question in the case whether the. Auditor of Public Accounts was authorized to direct prosecutions in. the name of the State, and the defendant’s counsel requested of the trial judge the following special charge to the jury, viz:

. “That the Auditor of Public Accounts of the State of Louisiana was, as public officer, authorized by law to direct prosecutions in the name of the- State of Louisiana, for all official delinquencies against all the debtors of the State, 'in cases such as the one on trial; therefore, if you find from the evidence that the defendant did embezzle the public moneys of the State of Louisiana, as is alleged in the bill .of information, then, and in that event, if you find from the evidence that such official delinquency was made known to the Auditor of Public Accounts for more than twelve months after the expiration of defendant’s term of office as Secretary of State, and for more thau twelve months before the information was presented and filed in this case, the .defendant cannot be punished therefor, and it is your duty to acquit .him.’’

The trial judge declined to give this in his charge to the jury on the ground that the “ Auditor is authorized to direct prosecutions by civil action alone; and that no one but the Attorney G-eneral, District Attorney, or magistrate, with criminal jurisdiction, is authorized to direct criminal prosecutions, like, the one at bar.”

This ruling was manifestly erroneous.

The duties of the Auditor of Public Accounts are specifically enumerated in sections of the Revised Statutes, 172 et sequentes; and 176 declares, in express terms, that “ it shall be his duty * * * to direct prosecutions in the name of the State for all official delinquencies in relation to the assessment, collection and payment of the revenue; against all persons who, by any means, become possessed of public-money or property, and fail to pay, or deliver the same ; and against all debtors of the State.”

The language herein employed is quite similar to that of the Statute in reference to the prescription of offenses. It declares that “no person shall be prosecuted, tried or punished for any offense, wilful murder, etc., excepted, unless the indictment or presentment for the same be found or exhibited within one year next after the offense shall have been made known to a public officer having the power to direct the investigation or prosecution,” R. S., Sec. 986.

Not only does the statute quoted confer the power on the Auditor, but it makes it, unmistakably, his “ duty ” to direct prosecutions in the name of the State,” in each of the three following cases, viz:

1. “ For all official delinquencies in relation to the assessment, collection and payment of the revenue.'"

2. “ Against all persons who, by any means, become possessed of public money or property, and fail to pay or deliver the same.”

3. “ Against all debtors of the .State.”

The charge against the defendant comes within the terms of paragraph second, as he is alleged to have embezzled public money, property of the State, which he had received and been, entrusted with, as Secretary of State — same being the proceeds of the salo of election tickets, which had been paid for with the money of the State, drawn from the State Treasury, on warrants issued by the Auditor, and against an appropriation made by the Legislature for that purpose.

Indeed, upon the trial of persons thus charged, the- books of the Auditor are not only competent evidence, but the statute of 1871 declares that “ upon the trial of any such officer ffir embezzling public money, under the provisions of this act, it shall be sufficient evidence for the purpose of showing a balance against such officer or person, to produce a transcript from the boohs of the Auditor of Public Accounts, and proof of the refusal of any such officer, or person, whether in or out of office, to pay,” etc. Sec. 90 Act 42 of 1871.

By the terms of Sec. 91 of Act 68 of 1870 it is made the duty of the Auditor to cause a thorough examination to be made as often as once in every six months, “of all tho receipts and business, books and vouchers of each collector and each receiver * * and every other State officer, or agent, having an office in which business of the Stato is attended to, done or performed,” etc.

By the terms of Sec. 92 of Act 42 of 1871, it is provided that if, iu the course of any such examination, any evidence of embezzlement, or breach of trust is discovered on the part of any officer, or persons whose accounts have been thus examined, the same shall be made known to the Auditor, “and it shall be the duty of the said Auditor to forthwith cause the arrest of collector, receiver, or agent, or person, or persons, Whose official functions shall be suspended,” etc.

We are at a loss to conceive of any room -left, in the face of such provisions, for any argument in support of the theory that the Auditor is not, in the eye of the law, a public officer, “ having the power .to direct an investigation, or prosecution ” within the intendment of Sec, 986 of ike Rtwised Statutes,

The quoted-provisions of those statutes deal with the same subject-matter as that treated of in R. S., Sec. 903 el scquentcs, and are entirely consistent, therewith.

Wo aro of the opinion that the charge requested was a proper one, and that it was error on tho part of the trial judge to have refused it. This was evidently to the prejudice of the accused, and ho is therefore entitled to a new trial.

It is, therefore, ordered, adjudged and decreed, that tho verdict of the jury be set aside, tho sentence of tho court arrested, and tho causo remanded to the lower court for further proceedings, according to law and the views herein expressed.

■Mr. Justice Fenner dissents, and flies a separate opinion.

Dissenting Opinion.

Fenner, J.

Section 986 R. S. provides: i:Xo person shall be prosecuted for any offense, wilful murder, etc., excepted, unless tho indictment or presentment for t.ho same bo found or exhibited within ono year.noxt after tho offense shall have been made known to a public officer having the power to direct the investigation or prosecution.” ,-J.t.is obvious that the public officer” referred to is ono whose official duty it is to inaugurate criminal proceedings for offenses of which lie.has cognizance, and who represents the State in such proceedings. It is the negligence of the State, through her officers authorized and required to represent her.in such matters, which forms the basis of prescription.

In a certain sense, every public officer, in common with every citizen, has the power to inaugurate criminal prosecutions for any offense, by making affidavit before the proper authority; but their neglect to do so would operate -no basis for prescription, except iu tho case of public officers, to whom tho-Stato-had confided tho light and duty to act as. her agent in such matters, and whoso neglect would bo tho State’s neglect.

Such, I think, to be the clear meaning of the statute.

The Auditor of Public Accounts is a constitutional officer, whose duties appertain to the fiscal department of the government, and who has no connection whatever with the administration of criminal justice, except where duties iu connection therewith are imposed by special statute, as for instance, by Sec. 92 of the Revised Statutes, Act No. 42 of 1871.

The claim of defendant that such duties are imposed on the Auditor by Sec. 176 of the Revised Statutes,T think, has.no foundation. That section, in fen paragraphs, defiues the various duties of the office, all of which, as therein set forth, relate to the fiscal affairs of the State ; and the seventh paragraph makes it his duty : “ To'direet prosecutions in the name of the State for all official delinquencies in relation to the assessment, collection and payment of the revenue against all persons who, by any means, become possessed of public money or property, and fail to pay or deliver the same, and against all debtors of the State.”

If, instead of the words direct prosecutions,” the words “ direct suits” had been used, no one would have supposed, for an instant, that anything was intended except civil suits.

But the word “ prosecution ” by no means necessarily refers to criminal proceedings.

It is equally applicable to civil actions.

Mr. Abbott gives the following definition :

“ Pi osecute : To carry forward, wage or maintain a judicial proceeding.

“ Prosecution : The act of conducting or waging a proceeding in court.”

We commonly speak of prosecuting a civil, as well as a criminal, action.

The use of the word, therefore, leaves ns at entire liberty to determine iu what sense the Legislature used it.

When we find that the prosecutions directed are to be “ against all persons who by any means become possessed of public money or property and fail to pay or decline to deliver the same, and against all debtors of the State,” the inference seems irresistible that civil suits for the recovery of the money or property or of debts due the State aro alone contemplated, since it is evident that debtors of the State and even persons who come into possession of mouey or property belonging to her, are not necessarily criminal, and the sapie may be said of delinquent revenue officials,, who may or may not bo criminals, and whose prosecution for criminal delinquencies is provided for in the levenue laws of the State.

This view is strengthened by the use of the words “in the name of the State,” which would be the sheerest superfluity, if crimiual proceedings were referred to, because these are, always and necessarily, carried on in the name of the State ; whereas, in order to bring a civil suit in the name of the State, the Auditor required special authorization to that effect.

Considering, further, that the representation of the State in criminal proceedings is confided to special officers established for that purpose by the Constitution and laws, and that such duties are utterly foreign to the functions of the Auditor of Public Accounts, T think the Auditor does not belong to the class of public officers referred to in section 986 R. S.? and must, therefore, dissent from the opinion and decree of the court.  