This is one of five cases, presently before us for consideration, in which the former Sheriff of St. Landry Parish, Daly J. Doucet, is charged with having committed the statutory crime of embezzlement of public funds. The others are numbered 36741, 36742, 36743, and 36744, on the docket of this court.204 La. 95, 96, 97, 98, 14 So.2d 922, 923. All are on appeals perfected by the state from decrees of the district court sustaining demurrers to the several bills of indictment and informations and discharging defendant; and they were consolidated here for the purpose of argument.
The prosecutions are predicated on the provisions of Sections 903 and 904 of the Revised Statutes (Articles 912 and 913 of Dart's Criminal Statutes) reading:
"Article 912. Any officer of this state, or any other person, who shall convert to his own use, in any way whatever, or shall use, by way of investment in any kind of property or merchandise, or shall loan, with or without interest, or use in any other manner than as directed by law, any portion of public money which he is authorized to collect, or which may be entrusted to safe keeping or disbursement, or for any other purpose, shall be guilty of an embezzlement of the same.
"The neglect or refusal to pay over, on demand, any public money in his hands, in the manner required by law, shall be prima facie evidence of its conversion and embezzlement; and any officer or other person, and all persons advising, or knowingly and wilfully participating in such embezzlement shall, upon conviction thereof, pay *Page 82 a fine equal to the amount of money embezzled, besides restoring the same; and shall be imprisoned at hard labor, not less than six months, nor more than five years. (R.S. § 903).
"Article 913. The provisions and penalties of the preceding section shall extend to all officers or other persons, their aiders and abettors, who shall embezzle the funds belonging to any parish or incorporated city, with the collection, safe keeping, or disbursement of which they may be intrusted or charged. (R.S. § 904)."
It is charged in the indictments and informations that defendant, while acting in his official capacity as sheriff and ex-officio tax collector of St. Landry Parish, did receive and take into his possession and have intrusted to his care and keeping various sums of public money; that out of such funds he did feloniously and wrongfully convert to his own use and otherwise embezzle specifically named sums; and that said sums were used in a manner other than as directed by law.
In response to defendant's motions for bills of particulars, the district attorney filed answers stating that the sums embezzled were from the Sheriff's Salary Fund.
Some of the money allegedly embezzled, so the indictments and informations show, was represented by checks issued by the parish treasurer and bear the endorsements of the respective payees, their issuance being pursuant to warrants drawn by defendant; while another portion was in the form of the treasurer's check made payable to defendant and by him endorsed, given to *Page 83 pay for the transportation of prisoners and insane persons as requested in his warrant.
Out of the Sheriff's Salary Fund, the maximum authorized amount of which is fixed by statute, are paid the salary of the sheriff and ex-officio tax collector and all of the expenses necessary for the operation of his office. The fund is made up of commissions on taxes collected by that official and also of certain fees and charges allowed him by law.
At the time that defendant committed the alleged crimes, this being in the year 1937, a sheriff and ex-officio tax collector was required to turn over to the parish treasurer the deducted commissions from taxes collected and the mentioned fees and charges received by him. All of this money was then deposited by the treasurer in the parish fiscal agent bank to be accounted for by him under the head of a "Sheriff's Salary Fund". Respecting withdrawals from this fund, Section 3 of Act No. 156 of 1920, as amended by Act No. 76 of 1936, provided:
"* * * The Sheriff and Ex-Officio Tax Collector shall draw his salary monthly on his own warrant; and shall monthly issue to employees and deputies orders on the Parish Treasurer for the amount due them. For claims within the allowance above fixed, and to be charged to said allowance, he shall collect on his own warrant; it being the intention that the Treasurer's books shall show the total receipts of the office of Sheriff and Ex-Officio Tax Collector in civil and criminal matters and all other fees, allowances, charges and commissions, and the disbursement to the *Page 84 Sheriff and Ex-Officio Tax Collector, including the salary and all other expenses of the office, and also including the reimbursements of actual expenses paid out as hereinafter allowed, * * *."
As to the amounts allowed or authorized to be expended, the law provided:
"In the event that the said amounts or any of them exceed the necessities of any one of said Sheriffs and Ex-officio Tax Collectors in the efficient performance of his duties as aforesaid, the excess shall not be drawn or otherwise expended by the said officials, but remain in the Parish Treasury. * * *" Section 2 of Act No. 156 of 1920, as amended by Act No. 83 of 1932.
It is well said in State v. Smith et al., 194 La. 1015,195 So. 523, that the crime of embezzlement, with which defendant is charged, "is a statutory and not a common law offense, and the indictments charging people under the statutes of the various states must, of course, be governed by the provisions of these statutes, which vary in the different states. It can be said, however, that, generally speaking, embezzlement is a fraudulent and felonious appropriation of another's property by the person to whom it has been entrusted or into whose hands it has lawfully come. The gist of the offense is a breach of trust. The essence of the offense is the conversion of the property. In other words, the crime of embezzlement cannot be committed until the owner has been deprived of his property by its conversion to the use of the person to whom it has been entrusted." *Page 85
Under Sections 903 and 904 of the Revised Statutes (Dart's Criminal Statutes Articles 912 and 913), above quoted, an officer of the state or any other person is guilty of embezzlement when he converts to his own use, or uses in any other manner than as directed by law, any portion of public money which is intrusted to his safe keeping or disbursement. Defendant in no manner disputes this statement of the law. But he insists that "under the law, the Sheriff's Salary Fund and the sums therein deposited were not, at the time alleged, in the custody or control of, or disbursable by the sheriff and that no fiduciary relationship, necessary to sustain a charge of embezzlement, did, or could have existed between the sheriff and the state, parish, or taxing body."
This contention of defendant represents the principal defense urged under the demurrers; and it poses the question: "Was the Sheriff's Salary Fund intrusted to defendant's disbursement and in his legal possession as contemplated by our statutory law?"
Concededly, defendant did not have physical custody of the money. As before stated, it was turned over to the treasurer and deposited in the parish fiscal agent bank, all in accordance with the requirements of law. But for all practical purposes the sheriff was the legal possessor. He had and exercised exclusive control of it. The treasurer was without right to make payments from or to debit that fund except upon an order from the sheriff; but upon the presentation of the sheriff's warrant, regular on its face, a duty devolved *Page 86 upon the treasurer to pay it, provided there were funds in the account sufficient therefor. No approval of any other officer was required for the disbursement.
We are not unmindful of the provision of the second paragraph of Section 903 of the Revised Statutes (Dart's Criminal Statutes Article 912) reading: "The neglect or refusal to pay over, on demand, any public money in his hands, in the manner required by law, shall be prima facie evidence of its conversion and embezzlement * * *." Obviously the words "in his hands" are not to be accepted literally, particularly in view of our modern system of banking that is utilized by all public officials; they can only mean in his legal possession or under his control, either physically or constructively.
If, for the sake of argument, an official deposits in a bank to his own credit public funds given to him for the purpose of paying certain office expenses, and thereafter he draws checks on the accounts in settlement of personal obligations, it could not be gainsaid that his acts, in that case, would constitute embezzlement. We can see no real difference from either a practical or a legal standpoint, between the supposed situation and the one presented by the instant controversy. In each physical possession of the public funds when disbursed is not in the official; yet in both he has complete control of the money made accessible to him for the payment of public obligations.
Interesting is the following extract found in 29 C.J.S. verbo Embezzlement, § 9: *Page 87
"Broadly speaking, accused must have lawful or rightful possession of the property alleged to have been embezzled. However, it is not necessary that he should have actual physical possession, nor that he should have exclusive possession thereof, but it is sufficient if he has constructive possession, and under some statutes, it is sufficient if he has access to, or control of, the money or property."
It is, therefore, our conclusion that the above stated question must be answered in the affirmative. In other words, the Sheriff's Salary Fund was in the legal possession of the defendant and intrusted to his disbursement, as the statutory law contemplates.
It is further contended by defendant, under the demurrers, that each count of the several indictments and informations charges more than one offense, he being accused of violating both Section 903 and Section 904 of the Revised Statutes (Articles 912 and 913 of Dart's Criminal Statutes). This same contention was made by the defendant in the case of State v. Manouvrier, 203 La. 541,14 So.2d 439, decided May 17, 1943; and therein we held it to be without merit.
Therefore, for the above reasons the judgment appealed from in this cause is reversed and set aside, defendant's demurrer is now overruled and the case is remanded for further proceedings according to law.
HIGGINS, J., concurs in part and dissents in part and assigns reasons. *Page 88
FOURNET, J., dissents and assigns reasons.
PONDER, J., dissents.