In order to constitute the crime of embezzlement, it is elementary that the accused should have lawful custody or *Page 89 possession of the funds converted or appropriated to his own use. Embezzlement is a statutory offense and the legislative definition thereof requires that the defendant be in legal possession of the money, which he embezzles. If an accused obtained custody or possession of the funds through larceny or by false pretenses, he would not have legal custody of the money and could not be charged with embezzlement thereof. He could be punished for committing either the crime of larceny or the crime of obtaining money by false pretenses, but not embezzlement. Since the crime of embezzlement is purely statutory, it is conceded that the Legislature has the right and authority to change the definition of the offense by eliminating the requirement that the defendant be in lawful custody of the funds or money converted to his own use. The issue involved in this case as to the legality of the indictment necessitates the court determining whether or not the statute under which the defendant is charged requires that he be in lawful custody or possession of the money.
Article 912 of the Code of Criminal Procedure (R.S. § 903) reads:
"Embezzlement of public money. — 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 portionof public money which he is authorized to collect, or which maybe entrusted to safe keeping *Page 90 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 publicmoney 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 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." (Italics ours.)
It will be observed that the officer or the person may be charged with embezzlement under the statute if he converts to his own use "any portion of public money which he is authorized tocollect, or which may be entrusted to safe keeping ordisbursement, or for any other purpose * * *." (Italics ours.) Necessarily, if the officer or person authorized to collect public money does not in fact collect it, he would not have either the physical or legal possession or custody thereof, and could not be charged with embezzlement of it. If he did collect the money, then he would have the legal possession and custody of the funds because he is authorized to collect it. It is obvious that if public money is "entrusted" to an officer or a person for safe keeping, or "entrusted" to him for disbursement, or "entrusted" to him for any other purpose, he necessarily has the legal custody and possession of the funds. If he has "any public *Page 91 money in his hands" and neglects or refuses to pay it over on demand "in the manner required by law", his neglect or refusal to do so shall be prima facie evidence of conversion and embezzlement. Therefore, the conclusion is inescapable that the statute requires the officer or public official or person to have lawfully in his hands, or possession, or custody, public money, before he can be charged under the statute with embezzlement. The statute is free from any ambiguity or uncertainty in that respect, but even if it were not, since this is a criminal statute, it would have to be strictly construed in favor of the accused.
While the respective indictments charge the defendant with separate and distinct acts of embezzlement, the facts recited in the State's answers to the defendant's bills of particulars show that, in certain instances, he did have lawfully in his hands, possession or custody of certain public money, but, in other instances, he did not have the public money in his hands, possession or custody, because it was paid direct through checks by the Parish Treasurer to the creditor. In other instances, it appears that the money was obtained by alleged misrepresentations or fraudulent means. Consequently, it appears that in these transactions the State's proof would not bring those particular counts of the indictments within the provisions of the statute. The facts recited in the answers to the bills of particulars tend to show that these checks given to the creditor in payment of the alleged indebtedness were to cover the defendant's personal obligations, or that public money was obtained *Page 92 by defendant through spurious bills. If this be true, the public funds would have been unlawfully diverted from public to private purposes through the misrepresentation of the defendant that the debts were public ones. This, if proven, would constitute the offense of obtaining money by false pretense but since the fundamental requirement of the statute is that the defendant have, lawfully, in his hands, in his possession or custody, the public money and convert it to his own use and the statements of facts in the answers to the bills of particulars show that he did not have such possession or custody thereof, the counts in the indictments predicated on those transactions would be subject to the motion to quash them.
The error in the prevailing opinion, as I see it, is that it is stated that, as the defendant has the right to draw against certain parish funds appropriated and dedicated for certain public purposes, this authority is equivalent in legal contemplation to possession and custody of it. It could not be successfully argued that the defendant had physically, in his hands, possession and custody, the public money in question, because the statements of facts contained in the answers to the bills of particulars conclusively show that this was not the case.
The fiscal law of the State places in the custody of the Parish Treasurer the public money which the defendant has the authority to draw against for the purpose of paying certain public legal expenses, obligations or debts. The fiscal law also requires the Parish Treasurer to place the *Page 93 public monies in a fiscal agent bank, which has qualified as such under the State statutes. Since the public monies against which the defendant had the right to draw, in order to liquidate certain legal public expenses, obligations, or debts, of the Parish, were under the express provisions of the fiscal laws of the State in the custody and possession of the Parish Treasurer, it is difficult to understand how it could be said that those same public funds or monies were likewise in the hands, possession, and custody of the sheriff at the same time. The public funds or monies were by the express provisions of the fiscal laws of the State in the custody and possession of the Parish Treasurer and, therefore, could not either physically or legally be in the hands, possession, or custody of the defendant. Now, if he lawfully obtained possession of such public money and converted it to his own personal use instead of public purposes, he would be subject to a charge of embezzlement. If he, through false pretenses, obtained possession of public money and used it for his own personal purposes, he could be charged with obtaining money by false pretenses, but not with embezzlement.
It is my opinion that wherever the counts in the indictments supplemented by the answers to the bills of particulars show that the defendant had public monies or funds lawfully in his hands, possession, or custody, those are legal counts in the indictment for embezzlement, but where the counts of the indictments supplemented by the answers to the bills of particulars show that in certain transactions the defendant did not have in his hands, possession, *Page 94 or custody the public funds or monies, or illegally obtained possession or custody of public monies by false pretenses, those counts of the indictments are fatally defective and do not allege the crime of embezzlement within the provisions of the statute.
The State's attorneys argue that in such latter instances the trial judge should have afforded them the opportunity to amend, so as to make the inconsistent allegations of fact in those counts of the indictment conform with the statement of facts contained in the answer to the bill of particulars.
The record does not show that timely request for such amendment was made by the State even if it had been entitled to that consideration. It appears that the State maintained that the indictment was valid and legal in all respects for the crime of embezzlement. If the State had any right to have the indictment amended, it should have sought that relief by proper and timely application to the trial judge.
It is contended by the State that as the verdict of guilty of obtaining money by false pretense would be responsive to an indictment for embezzlement those counts of the indictment supplemented by the answers to the bills of particulars showing that the defendant did not have lawful possession and custody of the public money alleged to have been embezzled should not be quashed. The error in this statement is that the law requires a valid indictment of embezzlement before the verdict of a jury finding the defendant guilty of obtaining money by false pretense would *Page 95 be responsive. In short, the verdict would be valid because the indictment was valid, but if the indictment is invalid, then it would be legally incapable of supporting a valid verdict.
In the instant case, from the facts set forth in the answers to the bills of particulars there are certain counts in the indictment which do not charge the crime of embezzlement for the reason that the State admits that in the transactions covered by those counts, the sheriff did not have lawfully in his hands, custody, or possession of the public monies or funds in question. Therefore, these counts of the indictment being legally defective in charging the offense of embezzlement are legally incapable of supporting a valid verdict for obtaining money by false pretense.
For the foregoing reasons, I concur in part and dissent in part from the main opinion, as above explained.