OF

1. EMBEZZLEMENT (§ 28*) - INDICTMENT PUBLIC OFFICER-CERTAINTY OF SUM EMBEZZLED.

In an indictment against a public officer, great looseness is permitted in describing the money or funds embezzled because of the necessity of the case, and it is unnecessary to specify with certainty the particular kind of money or funds, whether gold or silver coins, or legal tender notes, or to give the denominations, or to specify from whom or at what time the money was received, but it should be certain to the extent of alleging the embezzlement of a particular sum of money.

[Ed. Note. For other cases, see Embezzlement, Cent. Dig. §§ 41, 42; Dec. Dig. § 28;* Indictment and Information, Cent. Dig. § 279.] 2. INDICTMENT AND INFORMATION (§ 125*)DUPLICITY-EMBEZZLEMENT.

An information, charging that defendant, a county auditor, embezzled $165, which he had collected by virtue of Laws 1905, p. 277, c. 147, which provides that it shall be unlawful to hunt, etc., without first obtaining a license from the county auditor, prescribing the payment of one dollar by residents of the state, $5 for nonresidents and $50 for any nonresident alien, although the $165 might include 165 licenses at $1 apiece, or 33 licenses for nonresidents or 3 for nonresident aliens, and 15 for residents or 3 for nonresidents, was not defective as charging more than one offense, since it would be impossible to trace from where the particular fund came, in the case of an officer handling public funds coming through so many avenues, and through so many different individuals.

[Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 342, 363; Dec. Dig. § 125.*]

3. INDICTMENT AND INFORMATION (§ 132*) DIFFERENT PENALTIES UNDER DIFFERENT STATUTES-ELECTION UNDER WHICH TO

PROCEED.

Though an information might have been filed under any one of several sections of the Code, it was not error not to require the prosecuting attorney to elect under which statute he would proceed, where it could make no difference to defendant that the penalty was different in the different sections. What concerns him are the acts with which he is charged.

[Ed. Note. For other cases, see Indictment and Information, Cent. Dig. §§ 433-437; Dec. Dig. 132.*]

fees, and failing to pay the same over to the county treasurer. Held, that the information was specific and certain with reference to the requirements of section 1606.

[Ed. Note.-For other cases, see Embezzlement, Cent. Dig. §§ 53, 54; Dec. Dig. § 34.*] 5. EMBEZZLEMENT (§ 11*)-MONEYS COLLECTED IN FIDUCIARY CAPACITY-DEMAND.

Where moneys are collected in a fiduciary capacity, proof of demand by one authorized to receive payment of such funds is not necessary before there can be a conviction for criminal conversion.

[Ed. Note.-For other cases, see Embezzlement, Cent. Dig. §§ 9, 10; Dec. Dig. § 11.*] 6. EMBEZZLEMENT (§ 48*)-CRIMINAL INTENTINSTRUCTIONS.

The proposition that the failure of a public officer to pay over funds coming into his possesinal intent to convert the same to his own use sion by virtue of his office must be with a crimthe instance of defendant and on its own mowas sufficiently covered, where the court, at tion, charged that an essential element in the crime charged is a felonious intent, and that it must be found from the evidence that he intended to convert the money to his own use, and to defraud the county out of the same, etc.

[Ed. Note.-For other cases, see Embezzlement, Cent. Dig. § 73; Dec. Dig. § 48.*] 7. EMBEZZLEMENT (§ 44*)-CRIMINAL INTENTEVIDENCE.

In a prosecution of a public officer for the tue of his office, evidence held to show a crimembezzlement of funds collected by him by vir

inal intent.

[Ed. Note.-For other cases, see Embezzlement, Cent. Dig. § 68; Dec. Dig. § 44.*] 8. OFFICERS (§ 111*) - SALARIED OFFICERS PAYMENT INTO TREASURY OF MONEY COLLECTED.

Under the direct provision of Ballinger's Ann. Codes & St. § 1598 (Pierce's Code, § 4003), county officers who receive a salary must on the first Monday of each month pay into the county treasury all moneys coming into his hands for fees and charges in his office or by virtue of his office during the preceding month, and common sense compels the construction that at the end of an officer's term all moneys belonging to the county should be turned over to his successor.

[Ed. Note.-For other cases, see Officers, Cent. Dig. §§ 180, 181; Dec. Dig. § 111.*] 9. EMBEZZLEMENT (§ 44*)-CONVICTION-SUFFICIENCY OF EVIDENCE.

In a prosecution of a public officer for the embezzlement of funds collected by him by virtue of his office, evidence held sufficient to support a conviction.

ment, Cent. Dig. §§ 67--70; Dec. Dig. § 44.*] [Ed. Note. For other cases, see Embezzle

Department 2.

Court, Pacific County; A. E. Rice, Judge. Appeal from Superior A. P. Leonard was convicted of embezzlement of county funds, and appeals. Affirmed. Chas. E. Miller, W. S. Fulton, and C. C.

-CERTAINTY OF INFORMATION.

Ballinger's Ann. Codes & St. § 1606 (Pierce's Code, § 4004), provides that any officer who is paid a salary who fails to pay to the county treasury all sums coming into his hands for fees and charges in his office, whether under the state or United States laws, is guilty

the State.

DUNBAR, J. On July 22, 1908, the prosecuting attorney of Pacific county filed the following information against the appellant in the superior court of said county, the

charging part of which is as follows: "The said A. P. Leonard on or about the 6th day of January, 1907, at the county of Pacific, and state of Washington, was the duly elected, qualified, and acting county auditor in and for the county of Pacific and state of Washington, and as such county auditor was not allowed by law to be paid or receive any money, fees, or compensation for his services as such county auditor, except the salary provided and allowed to be paid him by law as such county auditor; that as such county auditor it became and was his duty, imposed by law, to receive certain moneys, fees, and deposits by virtue of said office; and that on or about said 6th day of January, 1907, at the said county of Pacific and state of Washington, the said A. P. Leonard, then and there being, did receive and there was paid to him, as such county auditor and by virtue of said office, the sum of one hundred and sixty-five ($165.00) dollars, lawful money of the United States, of the value of one hundred and sixty-five ($165.00) dollars, which said prosecuting attorney is unable to more particularly describe, the same being money, fees, and deposits which was paid to him, the said A. P. Leonard, as county auditor of said Pacific county for 'Hunters' Licenses' and should have been paid and delivered to the treasurer of said Pacific county by him, the said A. P. Leonard, on the first Monday of each month, after receiving the same; that said A. P. Leonard, as such county auditor, having received the said sum of one hundred and sixty-five ($165.00) dollars, as aforesaid, at and in said county and state, as aforesaid, then and there being, did then and there, on the 6th day of January, 1907, as aforesaid, unlawfully, willfully, knowingly, fraudulently, and feloniously fail to pay the said sum or any portion thereof to the said county treasurer, as required by law, but unlawfully, willfully, knowingly, fraudulently, and feloniously did take and convert to his own use and embezzle the said sum of one hundred and sixty-five ($165.00) dollars, received by him as aforesaid; that the said sum embezzled, as aforesaid, was the money and property of the county of Pacific, and state of Washington, and that said A. P. Leonard did by said failure to pay said sum to said treasurer as aforesaid, and by converting the same to his own use, as aforesaid, commit a felony, contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Washington." To this information the appellant interposed a demurrer upon the following grounds: (1) That the said information does not substantially conform to the requirements of the Code of this state; (2) that more than one crime is charged against this defendant; and (3) that the facts charged in said information do not constitute a crime against the laws of the state

ruled, plea of not guilty entered, and trial had, which resulted in a verdict of guilty. Judgment and sentence followed, notice of appeal was given, and the proceeding is now in this court on appeal.

The errors assigned are (1) the overruling of the demurrer to the said information; (2) not requiring the prosecuting attorney to elect and designate under what statute he was prosecuting said action; and (3) the refusal of the court to give certain instructions. Chapter 147, p. 277, Laws 1905, establishing a license for hunters, provides that it shall be unlawful for any person to hunt, etc., without first having obtained a license therefor from the county auditor prescribing the payment of $1 for such license by resi dents of the state, $5 for nonresidents, and $50 for any nonresident alien. The statute also provides that the county auditor shall pay to the county treasurer all such fees collected by him, to be placed in the game protection fund to be used by the county commissioners for the propagation and protection of the game of such county. It is urged by the appellant that more than one crime is charged in this information, because the $165, it is argued, might have included 165 licenses at $1 apiece, or 33 licenses for nonresidents and 3 licenses for a nonresident alien, and 15 resident licenses or 3 nonresident licenses; that the testimony in the case was that the amount charged as having been embezzled represented $165 licenses, and that they were issued at different times and to different persons; that the embezzlement, if any, therefore constituted 165 offenses, each offense taken separately being a misdemeanor; and that, inasmuch as Ballinger's Ann. Codes & St. provides that the indictment or information must be direct and certain as regards the crime charged, and that the information must charge but one crime and in one form only, the information is insufficient. This contention is answered in 7 Enc. Pl. & Pr. p. 430, as follows: "In an indictment against the public or other officer, great looseness is permitted in the description of the money or funds embezzled, because of the necessity of the case, and it is unnecessary to specify with certainty the particular kind of money or funds, whether gold or silver coins, or legal tender notes, or to give the denomination of each coin or note, or to specify from whom or at what particular time the money was received, but the indictment should be certain to the extent of alleging the embezzlement of a particular sum of money." This is almost the universal announcement by courts and law writers on this subject, and arises from the necessity of the case, as it would be impossible to trace the particular fund or particular act or particular requirement from which the fund came in the case of an officer handling public funds coming through so

Individuals. A good case on this subject is People v. McKinney, 10 Mich. 53, where the court, in discussing this question and in drawing a distinction between embezzlement by a public officer where the public at large can exercise no control or constant supervision over him nor assume the direct custody of the funds, and embezzlement by a private individual where there can be such constant supervision by the owner of the funds, said: "We cannot, therefore, suppose the Legislature intended to require proof of the identity of the money embezzled by the treasurer, or of the kind of funds of which it consisted, or of the particular source from which it was received, without supposing they intended to render the provision they were enacting a dead letter." See, also, State v. Dix, 33 Wash. 405, 74 Pac. 570; State v. Bogardus, 36 Wash. 297, 78 Pac. 942.

It is also urged that, inasmuch as this information might have been filed under any one of several sections of the Code, viz., 7119, 7123, 1606, and 7213, it was error not to require the prosecuting attorney to elect and designate under which statute he would proceed. It makes no difference to the appellant that the penalty is different in the different sections. What concerns him are the acts with the commission of which he is charged. State v. Isensee, 12 Wash. 254, 40 Pac. 985.

But counsel insists that, while the information was probably filed under the provisions of section 1606, the objection to the prosecution under that statute is that there is no analogy between the subject-matter of the statute and the information. But we think the analogy is very strong. Section 1606 provides that "any county officer who is paid a salary, who shall fail to pay to the county treasury all sums that shall have come into his hands for fees and charges in his office, or by virtue of his office, whether under the laws of this state or of the United States, shall be deemed to be guilty of embezzlement," etc. The information would seem to be drawn exclusively under this section, for it charges the appellant with being a county officer who receives a salary, with receiving money for fees, and for failing to pay the same over to the county treasurer. We hardly see how the information could be any more specific and certain with reference to the requirements of section 1606.

The appellant's third proposition is that, where the moneys are collected in a fiduciary capacity, proof of demand by one authorized to receive payment of such funds is necessary before there can be a conviction for criminal conversion. The appellant has cited no authorities to sustain this proposition, nor do we think that any can be found. It would be a direct encouragement to laxity in offi

put any such construction upon the law. Under such construction, the officer could retain money that came into his possession for an indefinite length of time. If afterwards, by experting the books or from any investigation, it was found that such moneys had been retained, all he would have to do would be to pay the same upon demand made. If the law were to be construed in this manner, the public funds would become a prey to plunderers and dishonest officers.

The fourth proposition is that the failure of a public officer to pay over funds coming into his possession by virtue of his office must be with a criminal intent to convert the same to his own use. This proposition is undoubtedly correct, but the jury were instructed on this subject as follows: "An essential element in the crime charged in this case is a felonious intent, and, before you can convict the defendant, you must find from the evidence that he intended to convert to his own use the money in question, and to cheat, wrong, and defraud the county of Pacific out of the same. If you find from the evidence that the failure of the defendant to pay over this money was due to neglect and carelessness, and that he had no intention of cheating and defrauding the county out of the same, your verdict must be not guilty." This instruction was given at the instance of the defendant, and the court gave the same instruction in substance on its own motion.

It is contended, also, that the evidence was not sufficient to sustain the verdict; that it was a case of faulty bookkeeping; and that there was no criminal intent shown. The testimony in the case shows that the license fees were for $1 licenses, or resident licenses, and that the only book kept was one containing the licenses, with a stub attachment to each license issued. There was no intricacy about this bookkeeping. It was a simple proposition of addition and subtraction. The stubs showed so many licenses issued at $1 per license. The books showed so many dollars turned over to the treasurer from such licenses, and in this instance showed that there had been $165 more paid in to the auditor than was turned over to the treasurer. In fact, the appellant himself makes no contention that there was any intricate bookkeeping, or that he was misled in that respect, for, when asked whether the books showed accurately the amount received by him, he said they did; and, in answer to the question, "Any ordinary accountant could take these books and ascertain the amount received?" the answer was: "They certainly could."

The contention of the appellant is that the law prescribed no particular time at which the money should be turned over by the auditor to the treasurer. Section 1598, 1 Ballinger's Ann. St. (Pierce's Code, § 4003),