(dissenting). The defendant, in my opinion, was charged with two separate and distinct offenses. He was indicted under sections 1849 and 1851 of Sand. & Hill’s Digest, which make it “unlawful for any officer of this State, or of any county, township, city or incorporated town in this State, or any deputy clerk, or other person employed by such officer, having the custody or possession of any public funds, by virtue of his office or employment,” first, ‘‘to use the same in any manner whatsoever for his own purpose or benefit;” second, to loan the same ; third, to permit any person or corporation to use the same; fourth, to deliver such funds knowingly to any person or corporation not entitled to receive the same; and, fifth, ‘‘to wilfully fail or omit to pay over any such funds to his successor in office at the expiration of his term of office.” Section 1851 provides that a violation of any of these provisions shall be a felony. The defendant is charged in the indictment before us with a violation of the first and fifth provisions of section 1849; that is to say, with the conversion of the public funds in his hands to his own use, and with failing and omitting to pay such funds to his successor in office at the expiration of his term of office. Under sections 1849 and 1851, this act and omission constituted two separate and distinct felonies.
I think the judgment of the court below sustaining the demurrer to the indictment should be affirmed.
Wood, J., concurs with me in this opinion.