Dissenting Opinion.
Myers, J.I am not able to concur in the majority opinion in this case as to the proposition that a demand is not necessary to be alleged under §2284 Burns 1908, Acts 1905 p. 584, §391, the section on which the indictment is based. Section 2283 Burns 1908, Acts 1905 p. 584, provides a penalty for the failure of a public officer at any time during the term for which he was elected or appointed, “when legally required by the proper person,” etc., to pay over money, or deliver property, etc., which may have come into his hands by virtue of his office. The penalty is a fine not exceeding $1,000, imprisonment for not less than one, nor more than five years, and disqualification from holding any office of trust or profit for any determinate period. Section 2284, supra, as I read it, applies to one going out of office and to his successor as well, while §2283, supra, applies to funds arising from collections during a term in the usual course of business. Section 2284, supra, prescribes a different penalty from §2283, supra, in that it leaves off the disqualification from holding office. The first portion of §2284, supra, does no more than declare a common-law duty and obligation, both as to the officer and the successor. The purpose of §2284, supra, was the protection, under criminal penalties, of particular characters of moneys as such, and is directed to the subject of moneys coming to an officer in a particular way, and against the officer for the time being who is the custodian. If this be not true, then §2283, supra, and the latter portion of §2284, supra, cover the same subject and ground, but with different penalties, and we must assume that there was some purpose in this statute, for *505§2283 formerly applied not only to officers during the term, but at the expiration of the term.
Acts 1855 p. 89, was amended in 1881 (Acts 1881 [s. s.] p. 174, §1943 R. S. 1881).
Section 2284 had its origin in 1883 (Acts 1883 p. 106), under an act entitled “An Act relating to county, State, and other officers, and the payment by them to their successors in office of all moneys in their hands at the expiration of their terms of office, and providing penalties for failing so to do.”
The act was as follows: “That it shall be the duty of each clerk, sheriff, and treasurer of the several counties in this State, and every other officer receiving money in his official capacity, at the expiration of his term of office, to pay over to his successor in office all moneys of every description, to whomsoever due, remaining in his hands at the expiration of such term, taking the receipt of such successor therefor; and such successor and his sureties shall be liable therefor on his official bond, as if the same had been originally collected by him; and any clerk, treasurer, or sheriff, so failing to pay over such moneys, or any successor, or clerk, treasurer, or sheriff who shall fail to pay over any moneys to parties entitled to receive the same when called on to do so, shall be deemed guilty of embezzlement, and, on conviction thereof, shall be fined in any sum not exceeding one thousand dollars, and be imprisoned at hard labor in the State prison not less than one nor more than five years. ’ ’
The reason for the enactment of the statute is pointed out in State v. Wells (1887), 112 Ind. 237, 240, 13 N. E. 722. When the act was adopted in 1905 with the construction theretofore put upon it by the courts, in which demand had invariably been alleged, it was modified in such manner as to indicate more clearly the purpose as declared in the title of the original act. For the purpose of comparison the act of 1905, stipra, is set out. “It shall be the duty of each clerk of the circuit court, sheriff and treasurer of each *506county in this state, and of every other county, state, township, city or town officer in this state receiving money in his official capacity, at the expiration of his term of office, to pay over to his successor in office all moneys of every description, to whomsoever due, remaining in his hands at the expiration of such term, taking the receipt of such successor therefor; and such successor and his sureties shall be liable therefor on his official bond, as if the same had been originally collected by him; and any clerk, treasurer, sheriff or other such county, state, township, city or town officer, so failing to so pay over such moneys, and any such successor to any clerk, treasurer, sheriff or other such officer who shall fail to pay over any such moneys to parties entitled to receive the same, when called on to do so, shall be deemed guilty of embezzlement, and, on conviction, shall be fined in any sum not exceeding one thousand dollars, and be imprisoned in the state prison not less than one year, nor more than five years.' ’
The words italicised mark the changes. The word ‘ ‘ such ’ ’ in the phrase “failing to pay over such moneys” and in the phrase “who shall fail to pay over any such moneys,” clearly refers to moneys in the hands of an outgoing officer, payable to, and also those received by a successor in office, for it will be seen that the words “such moneys” in the first clause can by no construction be limited or applied to successors in office, for immediately following it “successors” are specifically designated, to my mind clearly indicating that the phrase when “called on to do so” refers not only to the outgoing officer, but also to his successor at the expiration of, or during his term of office, as to moneys received in succession, and the change in the act of 1905 by the addition of “such” indicates the intent. There could be no other reason for the section. The disjunctive “or” in the act of 1883, after the words “such moneys,” and before the words “any such successor,” and the substitution of “and” leads further to the intention to couple both characters of officers in the same *507category, and as subject to the same penalties under the same conditions; that is, “such” moneys refers to such moneys as are received by a successor from another predecessor in office, which he in turn must account for and pay over to his successor if he still has them, but which he may be indicted under the latter part of §2284, supra, for failing to pay out on proper demand, during his term, and indicates the legislative intention to reach a possible ease which would not be reached by §2283, supra, or the first part of §2284, supra, and the whole subject of §2284, supra, is that of successors in office. This construction harmonizes and gives full force to both sections. That is, §2283, supra, applies to such demands for payments as may rightfully be made on the officer during his term of office, as to collections made by him, and §2284, supra, applies to an officer or his successor at the expiration of or during their terms, as to moneys received in succession. I gather this from the fact that §2283, supra, leaves out the provision of former sections which applied to the expiration of a term as well as to payment during the term, and the requirement for demand was the same as to each, under that section, though the general statute from 1853 (§9489 Burns 1908, §5925 R. S. 1881), has required county treasurers at the expiration of their terms to deliver to their successors all public money, books and papers, and §2284, supra, is explicit in its reference, by the use of the -word “such” in referring the subject of that section, to moneys which, at the expiration of a term of office, should be paid to a successor, and by the latter in turn paid out. In other words, there was no occasion for any reference in §2284, supra, to the payment of moneys by a successor in office received by him in the transaction of current business, as that subject is covered by §2283, supra, and the object of §2284, supra, seems to have been an excess of caution on the part of the legislature to provide against the contingency of one who obtains money as a successor in office refusing to pay to the proper person during his term, *508or on going out of office, without any penalty being provided for his nonpayment of moneys he may have received from his predecessor. Any other construction would lead to the result that under said §2283 the failure of one who is a successor in office, to pay over the moneys in his hands collected in the course of the current business, wrould subject that officer to a fine, imprisonment, and incapability of holding office, while for failure to pay out money which he had received from his predecessor, he would be free from incapability to hold office; a distinction without reason.
It is conceded by the State, as to payments during the term of office of the original collecting officer, demand is required because the statute so provides. It is argued that this is so, because it is only because of a proper demand made on him that he can be called on or required to pay, but that at the expiration of a term, the duty arises and is fixed by law to pay over, and that the law implies, or raises a demand, from that fact. The duty arises in one case .as much as in the other, so far as the abstract provision of the statute as to payment is concerned. Doubtless the legislature might provide that a prosecution for embezzlement will lie without a demand alleged, or that the action will lie without proof of a demand, under proof of fraudulent failure, or refusal to account for and pay over money, but that would be a question arising on the evidence under which a fraudulent failure, or fraudulent failure to account and pay, shown, would in and of itself obviate a demand, and this I understand to be the effect of the cases upon which the State relies, but I find no case in which it is held that a demand under §§2283, 2284, supra, need not be alleged as a matter of pleading. The case of State v. Mason (1886), 108 Ind. 48, 8 N. E. 716, did not present the question as a matter of pleading, for the indictment alleged a demand. The same is true as to Hollingsworth v. State (1887), 111 Ind. 289, 12 N. E. 490, State v. Wells, supra, and Stropes v. State (1889), 120 Ind. 562, 22 N. E. 773.
*509In State v. Hebel (1880), 72 Ind. 361, a prosecution under §2283, supra, before its amendment, it was held that there must be a demand, though at that time the general statute was in force as to the duty of a county treasurer at the expiration of his term of office to pay over to his successor moneys, etc., in his hands, but it was, by virtue of the express provision of the statute, required that a demand be alleged, but on the State’s theory, that would at no time have been necessary, owing to the general statute fixing a definite time when he shall pay over to his successor, and that general statute is here relied on by the State as fixing a definite time when embezzlement is charged to have occurred, from the mere failure to pay at that time, without necessity for a demand alleged.
In State v. Record (1877), 56 Ind. 107, it was held that in an indictment against a public officer for failure to pay over money required to be paid at stated times, such facts must be stated as will clearly show a violation of his duty, and that it is not sufficient to charge that he has committed a specified crime by alleging the act as “unlawful,” but facts must be alleged showing how he committed the alleged crime, by reciting the facts constituting the offense within the legislative intent. See, also, Siropes v. State, supra.
It should be noted that under §2282 Burns 1908, Acts 1905 p. 584, §389, conversion by defined acts constitutes the crime, without demand. Dean v. State (1897), 147 Ind. 215, 46 N. E. 528.
With §§2283, 2284, supra, as throwing light on the question, should be read §2130 Burns 1908, Acts 1905 p. 584, §254, which imports the requirement for a demand, while §§2291, 2292 Burns 1908, Acts 1905 p. 584, §§398, 399, are akin to said §2282 in making the conversion itself a crime without demand.
It is well established that it is sufficient to charge an offense in the language of the statute when the statute defining an offense specifies what acts shall constitute an of*510fense, but if the offense is not specifically defined by the statute then the particular acts constituting the offense must be alleged. State v. New (1905), 165 Ind. 571, 76 N. E. 400; Johns v. State (1902), 159 Ind. 413, 65 N. E. 287, 59 L. R. A. 789; State v. Patton (1902), 159 Ind. 248, 64 N. E. 850; State v. Feagans (1897), 148 Ind. 621, 48 N. E. 225; Littell v. State (1893), 133 Ind. 577, 33 N. E. 417.
The offense provided for in §2284, supra, is a failure to pay over money, and it is conceded in the prevailing opinion that it must be a fraudulent or felonious failure, hence it would not be sufficient merely to charge in the language of the statute a failure to pay over, but the prevailing opinion travels on the theory that it is being charged that appellee did “unlawfully, feloniously and fraudulently fail, neglect and refuse” to pay, is sufficient to constitute the offense. The term “refuse” to pay might imply a demand, but the offense cannot be charged by implication. Were it not for the peculiar language of §2284, supra, taken with §§2130, 2282, 2283, supra, I should be constrained to hold' that an offense is charged, because the charge of feloniously failing would probably imply criminal intent, and yet we have seen that to charge the failure as “unlawful” is not sufficient, but the statute has, as I conceive it, provided what must be done to raise the question of fraudulent or felonious intent, as a matter of pleading. The evidence might be such in a given case as to raise the question of felonious intent, without a formal demand shown, but under the statute as a matter of pleading it cannot, in my opinion, be raised without an allegation of a demand. If, as claimed by the State, the time fixed by law for paying over to a successor makes a demand, the words “when called on to do so” are meaningless, and we must regard them as being advisedly and purposely used. Why inject words into the statute which are not there, and reject or give no force to words which are there, when, under the views herein expressed, neither course is necessary, for the offense is ripe for punishment by so sim*511pie a thing as a demand, and the court has always regarded it as necessary in pleading?
# Civil cases where it is held that no demand is necessary when the contract or law fixes a definite time of payment, manifestly are not in point on the question before us, for the reason that the suit makes the demand.
Recurring to the statute, it seems to me that §2284, supra, describes but one offense, as applying alike to a public officer failing to pay over to his successor, and the failure of the latter, in turn, to pay to his successor, or to those entitled to the particular fund so received, and that in either case, the phrase “when called on to do so” refers to both classes, and that it is a statutory requirement under this section, as a matter of pleading, that demand must be alleged, unless it be alleged to be impossible from his absconding, or other excuse rendering it impossible. Dean v. State, supra; Kossakowski v. People (1899), 177 Ill. 563, 53 N. E. 115; State v. Blackley (1905), 138 N. C. 620, 50 S. E. 310; State v. Knowles (1904), 185 Mo. 141, 83 S. W. 1083; State v. Pellerin (1907), 118 La. Ann. 547, 43 South. 159; State v. Foley (1890), 81 Iowa 36, 46 N. W. 946; United States v. Adams (1880), 2 Dak. 305, 9 N. W. 718; Underhill, Crim. Ev. (2d ed.) §284.
If it be said that under this construction it permits the incoming officer to determine when an offense has been committed, depending on the question whether a demand is made or not, the answer is that the books and the settlement sheets show the situation, and that the incoming officer will be presumed to do his duty, and do what the statute requires, and for failing to do so he is liable to removal for malfeasance, misfeasance or nonfeasance in office. §9662 Burns 1908, Acts 1897 p. 278, §35.
At common law he was indictable.
The distinction between statutes which give rise to statutory crime from the statutory declaration that a given state of facts shall constitute a crime, as embezzlement from con*512version, and those in which something else must intervene to lay the foundation for a prosecution, as a demand, is well illustrated in the following cases. The distinction drawn by the writer is identically made in State v. Munch (1875), 22 Minn. 67, a well-considered case, and directly in point upon the question of constructive conversion, from failure to pay over at the expiration of a term. To the same point are State v. Longley (1858), 10 Ind. 482; State v. McKinney (1906), 130 Iowa 370, 106 N. W. 931; Haines v. People (1880), 97 Ill. 161; Wright v. People (1871), 61 Ill. 382; State v. Hayes (1898), 59 Kan. 61, 51 Pac. 905; State v. Bancroft (1879), 22 Kan. 170; State v. Pierce (1898), 7 Kan. App. 418, 53 Pac. 278.
The cases relied on in the prevailing opinion were all passed on prior to the enactment of 1905, and prior to the publication of the excellent treatise of Judge Gillett, and the changes in the act of 1905 were doubtless due to the holdings in those cases. As I have shown, State v. Mason, supra, based on the Massachusetts case, overlooks the important fact that the latter was a case of conversion in fact, not technical conversion, and in the Mason case actual conversion was charged. In Hollingsworth v. State, supra, a demand was alleged, and while there was no technical demand shown, the court adverts to the fact that it is shown by the evidence that he was clearly guilty and that he admitted the conversion of the funds, so that actual conversion was shown. "When we come to State v. Adamson (1888), 114 Ind. 216, 26 N. E. 181, Zollars, J., who had written the opinion in Hollingsworth v. State, supra, held the indictment invalid for lack of an allegation of demand, and as I understand Hays v. O’Brien (1909), 56 Wash. 67, 105 Pac. 162, it is on the same line, for the indictment directly charges conversion. So that on careful analysis, it seems to me that the writer’s views are in direct consonance with the eases, and the distinction he seeks to point out, viz: that in ease of actual conversion, or a charge of actual conversion, it may be that a *513demand need not be alleged or shown, for the reason that conversion itself creates the offense, but in the absence of actual conversion, constructive conversion, or embezzlement, can only arise from a demand.
It is said that demand is only evidence of conversion, and if so, then when conversion is alleged, the thing itself is alleged, and not the evidence of it, and it is that fact, circumstance and condition in all the cases which obviates the necessity for demand, as an unnecessary thing, where conversion is alleged. A fact is certainly as potent as the evidence of it, and this is the key to the decisions, and also the reason for the language of the statute, which is in exact consonance with the decisions.
Under the prevailing opinion, the statute is the subject of malicious oppression, while under my views it is intended that there shall be a demand unless conversion is charged under §2282, supra, or demand being impossible, and a reason alleged. State v. Munch, supra, is directly in point, also State v. Hunnicut (1879), 34 Ark. 562. Commonwealth v. Tuckerman (1857), 10 Gray 173, is shown by the opinion to have been a charge of conversion, and State v. Mason (1886), 108 Ind. 48, 8 N. E. 716, founded on it, charged conversion to the defendant’s own use, and the citation of Gordon v. Stockdale (1883), 89 Ind. 240, is further evidence of the application of the rule to conversion, and not to cases where other facts are necessary to constitute embezzlement, for in that case forcible possession of the property is alleged. The same is true as to People v. Dalton (1836), 15 Wend. 581; Commonwealth v. Hussey (1873), 111 Mass. 432; State v. Tompkins (1880), 32 La. Ann. 620; State v. Leonard (1869), 46 Tenn. 307; People v. Tomlinson (1885), 66 Cal. 344, 5 Pac. 509; State v. Belden (1883), 35 La. Ann. 823; State v. Cameron (1871), 59 Tenn. 78.
An examination of these cases will disclose the distinction between embezzlement by conversion, under §2282, supra, *514and embezzlement under §§2283, 2284, supra, as to the question of the allegation of demand, and the legislature has seen fit to distinguish the offense with different grades of punishment as to each. It is conceded in the prevailing opinion that there must be read into §2284, supra, the charge of fraudulently or feloniously failing, etc. (Stropes v. State, supra); but if the mere omission or failure to pay over creates the offense, then the motive would be immaterial so far as the charge is concerned, and it would be unnecessary to charge that the failure is felonious or fraudulent, to supply the intent, and that explains the omission from §2284, supra, of any such language. In other words, the statute is intended to create the offense under §2284, supra, for failure to pay over on demand, thus creating a condition from which embezzlement may be charged, for it will be seen that §2283, supra, supplies the intent from the language “fraudulently fail,” while still requiring demand, and §2282, supra, supplies it from conversion, and §2284, supra, from failure on demand, and this is in exact accord with State v. Cameron, supra, where the specific language of the statute was “wilfully” failing or refusing, following State v. Leonard, supra. The legislature had an express purpose where the embezzlement is not by conversion, or under §2283, supra, but from failing to pay over under §2284, supra, to require demand, unless the inability to make it is accounted for, in order to present a technical offense from the mere failure to pay at once. Any acts which would excuse a demand might be shown, and in cases of conversion the reason for no demand being alleged is apparent from the charge itself, while we here have a statute creating a technical offense, which it seems to me the legislature sought to give all necessary force for the protection of the public, and still hedge it against abuse. It is no answer to say that if there is an excuse so as to escape technical guilt it is a matter of defense; that would be true under either construction of the section, but the answer is that the statute created no exception, and is *515squarely within the rule in Britton v. State (1884), 77 Ala. 202, where the language of the statute was, “who- shall fail to make returns and forward the tax money in his hands from time to time to the proper authorities as provided by law, except for good cause,” and it was held under the general rule as to exceptions in a statute, that they are matters of defense. State v. Barrett (1909), 172 Ind. 169, 87 N. E. 7.
But this section has no proviso, or exception, and one should not be interpolated, nor should a citizen be- called on to expend money, or his character be defamed by a charge in such form that he must prove a negative or an excuse, unless the statute so provides, nor except upon a charge of a statutory offense, and certainly not where it is doubtful, to say the least.
I think the indictment is insufficient, and the judgment should be affirmed.
Note.—Reported in 97 N. E. 113. See, also, under (1) 36 Cyc. 1106, 1110, 1145, 1146; (2) 36 Cyc. 1152; (3) 36 Cyc. 1154; (4) 15 Cyc. 4S6; (5) 36 Cyc. 1153; (6) 36 Cyc. 1107; (7) 15 Cyc. 495, 496; (8) 15 Cyc. 496; 15 Ann. Cas. 575; (9) 38 Cyc. 2031; (10) 38 Cyc. 2032; (11) 15 Cyc. 522; (12) 36 Cyc. 1130; (13) 15 Cyc. 517, 521; (14) 15 Cyc. 517; (15) 22 Cyc. 295; (16) 8 Cyc. 802 ; 36 Cyc. 974; (17) 36 Cyc. 1095; 88 Am. St. 271; 14 Am. Dec. 209.