
    State v. Z. P. Jones.
    [58 South. 782.]
    1. Indictment. Embezzlement. Sufficiency of evidence.
    
    An indictment charging that defendant was the president of the hoard of supervisors of Lincoln county and that being such officer he received a -sum of money from one G. for a fine and. cost due the county by W., 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 that defendant did unlawfully willfully, feloniously embezzle said money, the property of said county, and that defendant did convert said money to his own use with intent to cheat and defraud the said county — is insufficient to charge the crime of embezzlement.
    2. Same.
    While such indictment charges that defendant was the president of the board of supervisors of the county, it does not charge' that the money was received by virtue of his office or by the color of his office or by reason of the fact that he was president of the board of supervisors; and if it had so charged it does not follow that the money intrusted to him thereby became the property of the county, on the contrary the county did not become the owner, hut the defendant took the money as the trustee of the party who intrusted it to him and the title to the money never passed to the county.
    3. Same.
    Under such indictment, had defendant been acquitted, he could not have pleaded a former acquittal to an indictment charging him with embezzling this money as 'the property of G. or W., and for this reason the indictment was fatally defective.
    
      Appeal from the circuit court of Lincoln county.
    Hon. D. M. Miller, Judge.
    
      Z. P. Jones was indicted for embezzlement. From a judgment sustaining a demurrer to the indictment, defendant appeals.
    The facts are fully stated in the opinion of the court.
    
      Frank Johnsion, assistant attorney-general, for appellant.
    It is true, that the president of the board of supervisors had no technical legal authority to receive the money for the county, but he did, in fact, receive the money by virtue of the color of his office, and he must have expressly, or impliedly, held himself out as having .authority to collect the money, and stood in the transaction as an official clothed with the authority to receive the money. The question whether an official has the "technical legal authority to collect the money which he receives and embezzles cannot be made the test, or the essential ingredient, of this crime. The case of a de facto officer presents a strong, if not an irresistible, analogy to a case of this precise character. A de facto officer has no technical legal authority, no authority, in fact, whatever, de jure, to do any official act, which includes the total want of technical authority, of course, to collect any moneys of the government, but if a de facto officer is guilty of any maladministration in office, including the embezzlement of public funds, the rule is well settled that he is guilty of embezzlement, and this although he had no technical legal authority for collecting the money; and though, in point of law he collected the money without authority, he is not permitted by the courts, after having received the money because of his office and after having embezzled the same, to turn around and say that he had no legal authority for receiving the money, and therefore cannot be held responsible for the same. In other words, he is estopped from denying his authority to collect the money in an indictment for embezzlement. This doctrine was expressly field by this court in the case of Fortenberry v. State, 56 Miss. 286. It is a rule that is generally recognized by the eourts and the law writers. 1 Wharton Criminal Law (10 Ed.), 903, 15 Cyc. 503.
    Here the defendant collected this money upon the assumption, and upon the belief of Graham who gave it to him, that he had the authority to receive the money for the county; that upon 'this assumption, he was enabled to get possession of this money by- virtue of the official position held by him, or he could never have collected this money. He acted illegally and immorally In receiving this money. In a civil proceeding, he would be absolutely estopped from setting up his own wrong against the county in a claim by the county against him for this money. Upon what principle, reason, or authority, can he, therefore, be permitted or allowed to set up his own wrong in defense of the present charge that is made against him? In every fair, just, rational and substantial sense, he received this money by reason or "because of this official position as president of the board •of supervisors. He has appropriated this money to his •own use (as is conceded by the demurrer to the indictment), and upon what principle can he now be permitted to claim that he fraudulently imposed upon Graham in -receiving this money from him under color of his office?'
    
      T. Brady, Jr., for appellee.
    The principal, or rather the essential elements of the •crime of embezzlement under the statutes of this state are: 1. That the accused occupied one of the several fiduciary relations specified; 2. That the money or property belonged to his principal; 3. That it came into the possession of the accused by virtue of the specified fiduciary relation; 4. A conversion to his own use by the accused with the intent to cheat and defraud his principal; and in the absence of any one of these vitalizing elements the crime of embezzlement cannot be committed. The statutes of'Mississippi do not define with particularity the crime, therefore, it is not sufficient to charge the offense merely in the language of the statute without alleging the facts and circumstances more particularly. Harrington v.. State, 54 Miss. 490; Finch v. State, 64 Miss. 461; State v. Bardwell, 72 Miss. 538. Under section 1066, Code 1892, in force at the time the acts complained of by the state in the instant case were committed, it would be essential to allege the specific elements of the crime of embezzlement against a public officer including the third as above enumerated. It is to be noted that even under this statute it is limited to those who are “officers or other persons employed in any public office who shall commit any fraud or embezzlement therein, etc.”
    Section 1063, Code 1892, in force at the time provides-that: “If any officer of . . . any district or subdivision of a county . . . shall unlawfully convert to-his own use any money or other valuable thing which comes to his hands or possession by virtue of his office ... he shall, on conviction, be imprisoned in the penitentiary not more than twenty years, etc.”
    Section 1058, Code 1892, provides against embezzlement by agents, clerks, servants, or officers of incorporated companies, and by trustees, bailees, clerks, agents or servants of private individuals and prescribes a penalty of not more than ten years in the penitentiary. It is manifest, therefore, that the state attempted to indict the appellee under section 1063, supra, as an officer of a district of the county. The indictment charges that he was such officer, to wit, president of the board of supervisors and a member of said board from district No. one, on the 4th day of September, 1911, “and being such officer, as aforesaid, did then and there, on March 20, 1906, receive the sum of one hundred and forty-four dollars in money of and from one M. Graham for the fine and cost due Lincoln county by one Will Wall.” Not that he received the money as such officer, or by virtue of his office, or by color of such office, or, on account of such official position, but while he was such an officer is the very strongest inference that can be drawn from the indictment. It does not affirmatively appear that he was even an officer on March 20, 1906, at the time the money is alleged to have been delivered to him by Graham. To my mind should I pay to Capt. Johnston, the learned assistant attorney-general, my privilege tax as attorney while he holds his commission from the state of Mississippi, he being an officer, and he should fail to deliver that money to the sheriff of Lincoln county, the authority, under the law to whom such taxes must be paid' by me, a parallel case would be presented by an indictment ¿gainst him for embezzlement of the funds belonging to the state of Mississippi. Even should the indictment charge, in the hypothetical case, that the money was received by Capt. Johnston by virtue of the office which he holds and the duties of which he so ably performs, an indictment for embezzlement of the funds of the state would not lie, about which I shall have more to say under another head.
    In the instant case, therefore, we say that the appellant is not supported by the record when it is contended that: ‘ ‘ This money was received by the president of the board of supervisors solely by reason of the fact that he was a high county official; that he got this money by reason of the fact, and by reason alone of the fact, that he held the office of president of the board of supervisors.”
    And that: “In fact, he assumed the authority to so receive this money, and did so receive as president of the board of supervisors and that otherwise the money would never have been paid to him.”
    Aside from the effect of the absence of appellee’s legal right to receive the money due the county for a fine if it were paid to and accepted by him as a member or president of the board, about which I shall hereafter have something to say; that question is not necessarily presented by this record by reason of the absence of any allegation upon which the appellant’s lengthy argument can be predicated. The facts quoted from its brief above are assumed by the writer and find no support in the indictment to which the demurrer was sustained, and the judgment of the court below, for that reason alone, should be affirmed.
    The person dealing with the officer knows the scope of the officer’s authority under the law. There can be, therefore, no element of estoppel in such case.
    That it is absolutely necessary in a prosecution against a public officer that the money was received or held by him in his official capacity or by virtue of his office. See 15 Cvc. 524, 10 Am. & Eng. Ency. Law (2 Ed.), 990.
    In the case of Moore v. United States, 160 U. S. 268, 40 L. Ed. 422, the question of the necessity of the receipt of money by an officer by virtue of his office was considered and it was held that: “An indictment which charges that the defendant, being an assistant, clerk, or employee in a postoffice, did embezzle a certain sum of money, the property of the United States, is deficient in not alleging that such sum came into his possession in that capacity.”
    In the course of the opinion the Supreme Court of the United States say: “The cases reported from the English. courts and from the courts of the several states have usually arisen under statutes limiting the offense to certain officers, clerks agents or servants of individuals or corporations, and the rulings that the agency or fiduciary relation must be averred as well as the fact that the money embezzled came into the possession of the prisoner in that capacity are not wholly applicable to a statute which extends- to every person regardless of his employment or of the fact that the money had come into his possession by virtue of any office or fiduciary relation he happened to occupy. These cases undoubtedly hold with great uniformity that the relationship must be averred in the exact terms of the statute — and that it must also be averred that the money came into the possession of the prisoner by virtue of his fiduciary relation to the owner of the property.”
    Further, that court, in the same case said: “If the words charging the defendant with being an employee of the postoffice be material then it is clear under the cases above cited, that it should be averred that the,' money embezzled came into his possession by virtue of such employment. Unless this be so, the allegation of employment is meaningless and might even be misleading since the defendant might be held for property received in a wholly different capacity — such, for instance, as a simple bailee of the government. In the absence of a statutory regulation the authorities on this subject are practically uniform.”
    10 Am. & Eng. Ency. Law (2 Ed.), 992: “There are some precedents which sustain the proposition that one who collects money for or on account of another is es-topped in a prosecution for embezzling the same to deny that he had authority to receive it.” (Citing 69 CaL. 226, and Ricord, 11 Nev. 287.) This view, however cannot be sustained without ignoring the express requirement of the statute, and it is opposed to the great weight of authority.
    
      Gassedy & Butler, for appellee.
    A fair test of whether or not the money was received by virtue of his fiduciary relation to the county, .is whether or not his official bond would be liable in case of default, though this test is really more strict than should be employed, for in this state the bond is liable whether the fund came into hand under color of or by virtue of the office. Adams v. Sanders, 89 Miss. 936.
    
      This principle is illustrated in this state by the following cases: Brown v. Phipps, 6 S. & M. 51; Brown v. Mosley, 11 S. & M. 354; Radford v. Hull, 30 Miss. 713; Edwards v. Ingraham, 31 Miss. 273; Grane v. Bedwell, 25 Miss. 507; Furlong v. State, 56 Miss. 717; Oil Co. v. Weatherford, 91 Miss. 501.
    Some of these cases are where the sheriff had collected funds without an execution in his hands, and it was there held that he was merely the agent of the plaintiff or the defendant, as the case might be, in making the collection and that the money did not come into his hands by virtue of his office.
    One of the leading and a very recent case on this subject is: Hartnett v. State, 133 Am. St. Rep. 971.
    It was there held that a police officer assigned to the position of jailor could not be convicted under a statute providing that, if an officer shall convert to his own use money belonging to the county that may come into his custody by virtue of his office he shall be punished where he appropriates to his own use money collected from prisoners as fines if the statute imposes the duty of collecting such fines upon another officer, and that because he assumed to make such, collected by color of his office, did not estop him from denying his authority so to do.
    In the case at bar it is not alleged that Jones collected the money by virtue of his office or by color of his office, nor are there any facts alleged to show the collection to have been made by him under such pretended or asserted authority.
    In the case cited, as in the case at bar, the duty to collect the fines is imposed by law on an officer other than the accused, and the cases are otherwise similar in all respects, save only, that the question here arises on an indictment and the question there arose on the proof.
    The Texas court cites with approval the case of State v. Bolin, 110 Mo. 209, and points out that the statutes of Missouri are much broader than the Texas statute, and the court will note that the Texas statute is almost identical with the statute under review.
    The court also cites with approval the case of Worsick v. State, 36 Tex. Crim. Rep. 63, in which case it was held that a similar indictment would not lie against a county judge for a misapplication or conversion of county school fund because such fund could not come.into his hands by virtue of his office, and the law did not authorize him as such officer to receive such funds.
    In United States v. Smith, 124 U. S; 525, it was held that a clerk of the collector of customs was not by statute charged with the safe-keeping of the public moneys, and therefore, could not be guilty of embezzlement of the same.
    In Commonwealth v. Alexander, 33, Ky. Law Rep. 971, it was held that a sheriff forbidden by law to collect taxes on unlisted property could not be convicted of embezzling money so collected as property belonging to the state or county, since under the statute to warrant -a conviction the officer must have been rightfully in possession of the money and misappropriated it, whereas in that case the sheriff was considered as holding the money in trust for the use of the persons from whom he received it.
    In Moore v. State, 53 Neb. 831, it was held that the auditor of public accounts who received fees in violation of the constitution which forbade him to receive the same and required that they be paid to the state treasurer, could not be convicted of embezzling such fees.
    In State v. Newton, 26 Ohio St. 265, it was held that a county auditor not being charged by law with possession and custody of money belonging to the state, an indictment charging him with converting money of the state which came into his possession by virtue of his office and in the discharge thereof or other person charged with the collection, etc., of public money if he converts the same to his own use, could not be convicted of embezzlement.
    
      A similar decision was rendered with, respect to a deputy county treasurer in State v. Meyers, 56 Ohio St. 340.
    A somewhat similar case is that of United States v. Hutchinson, 4 Clark (Pa.), 211.
    In Rex v. Ormond, 36 Eng. L. & Eq. 611, it was held, that a storekeeper of a county jail whose duties are defined by statute was not guilty of' embezzlement for wrongfully converting money which he was not allowed to receive.
    It is true that in a few cases, such as People v. Royce, 106 Cal. 173; People v. Robertson, 6 Cal. App. 514; State v. Spaulding, 24 Kan. 1; Denton v. State, 77 Md. 527, it is sometimes asserted that where an officer exceeds his authority he is estopped to deny the validity of his act.
    Argued orally by Franlt Johnston, assistant attorney-general, for appellant.
    Argued orally by George Butler, for appellee.
   Cook, J.,

delivered the opinion of the court.

This is an appeal by the state from the judgment of the circuit court of Lincoln county, sustaining the demurrer to an indictment charging appellant with the crime of embezzlement.

Omitting the formal parts of the indictment, it reads as follows: “Z. P. Jones did, on the 4th day of September, 1911, in the county aforesaid, being then and there a public officer of Lincoln county, said state of Mississippi, to wit, a member of the board of supervisors from district No. 1 of said county and state, and being then and there president of said board, and being such officer as aforesaid, did then and there, on March 20, 1906, receive the sum of one hundred and forty-four dollars in money of and from one M. Graham for the fine and cost due Lincoln county, said state of Mississippi, by one Will Wall, which had been legally imposed against the said Will Wall, and being then and there a legal debt, due by the said Will Wall to Lincoln county as aforesaid, and being then and there the money and property of Lincoln county when paid and delivered to'the said Jones as aforesaid, and the said money being then and there intrusted to the said Jones for Lincoln county, and it being then and there in his hands and in his possession, the said Jones did then and there unlawfully, willfully, and feloniously embezzle the said sum of one hundred and forty-four dollars, the money and personal property which had come into his possession and which had been intrusted to him as aforesaid, and being the money and property of Lincoln county as aforesaid, and the said Jones did then and there unlawfully, willfully, and feloniously convert said sum of money to his own use and benefit, with the felonious intent to cheat and defraud the said Lincoln county of the said one .hundred and forty-four dollars as aforesaid, contrary to the form of the statute,” etc.

We do not deem it necessary to undertake to distin-. guish the line of cases cited by the attorney-general in” support of the indictment from the instant case¿ These”cases are, in our opinion, totally inapplicable, to -the question involved here. The cases cited are to the ’ effect:, that a servant, indicted for embezzling the money -of hismaster, cannot be heard to say that he exceeded his authority in the time, or the place,- or. the manner in which he came -into possession of his master’s property. No such state of facts are involved in this case. The trouble with this indictment consists in the fact that the averment of ownership of the money alleged to have been embezzled is in direct conflict with the other averments of the indictment reciting to whom and under what circumstances the money is averred to have been paid to-the defendant. The defendant, therefore, does not seek to escape upon any such technicality. It will be noted that there is no averment in this affidavit that the appellant, who it is averred was president of the board of supervisors, received the money by virtue of his office, •or by the color of his office, or by reason of the fact that he was president of the board of supervisors. If it was so charged, it does not follow that the money intrusted to him thereby became the property of Lincoln county. On the contrary, the county did not become the owner, and, at best, the defendant took the money as the servant or trustee of the party who intrusted it to him, and, the title to the money never having passed to the ■county, the demurrer raises the question as to whether ■or not he is properly charged with embezzling the money •of the county.

If the defendant had gone to trial upon this indictment, and secured an acquittal from the jury, he could not thereafter have pleaded a former acquittal in bar of another indictment reciting all that this indictment contains, except the averment of ownership, which was stated to be in Graham or Wall. If the facts are as alleged in the indictment, the defendant embezzled the property of Graham or Wall, and not the property of Lincoln county, and for this reason this indictment was, in our opinion, fatally defective. There was no fiduciary relationship existing between appellee and the county, and the mere averment that when the money was paid to him it thereby became the property of Lincoln county does not make it a fact, when the other averments are in irreconcilable conflict with this averment.

Affirmed.  