(dissenting).
I am unable to concnr in the affirmance of the judgment of the court below in this cause, and will set forth as briefly as I can my reasons therefor.
Appellant was a member of the board of trustees of the state penitentiary, the other members thereof being W. A. Montgomery and Leroy Taylor. The indictment upon which he was convicted charged that:
He “did then and there willfully, wantonly, fraudulently, and feloniously, while acting and serving as a member of the board of trustees of the penitentiary of the state of Mississippi, caused to be bought and participated in the buying of a certain automobile of and from Baker-McDowell Hardware Company, Incorporated, of Natchez, Mississippi, and of and from himself, the said C. C. Smith, and then and there willfully, feloniously, fraudulently, and wantonly caused and procured and assisted in the cause and procuring the said automobile-to be paid for by the state of Mississippi by a requisition in writing for the sum of nine hundred from the state treasury of Mississippi. . . . And that the price paid for the said automobile was well known to the said C. C. Smith to be exorbitant, unreasonable, and a fraud upon the state. By which said willful, wqnton, fraudulent and felonious purchase, . .' . the state of Mississippi was willfully, . . . feloniously cheated and defrauded . . . out of the sum of nine hundred dollars,” etc.
*498The statute under which the indictment was found is section 1144 of the Code of 1906, which reads as follows:
“If any officer, or other person employed in any public office, shall commit any fraud or embezzlement therein, he shall be imprisoned in the penitentiary not more than ten years, or in the county jail not more than one year, or be fined.”
In order that we may clearly appreciate the effect of “the errors which, in my judgment, were committed on the trial in the court below, it will be necessary for us to bear in mind that, in order to constitute the crime defined by this section, the act committed must have been prompted by an intent to defraud, and that, in the absence of such an intent, the act, though never so harmful, will be either an innocent one or constitute at most a misdemeanor. In the language of the brief of the attorney-general :
“In the present case the intent is the gist of the case, and is the thing that raises it from a misdemeanor to the .grade of a felony. In other words, the act without the intent would be a misdemeanor, and the act with the in-' tent was a felony.”
The facts upon which the guilt or innocence of appellant depend are as follows:
In September, 1911, appellant purchased from Mr. R. S. Withers an automobile for the sum of five hundred dollars. He kept and used this automobile until October 1912, when it was sold to the state for the sum of nine hundred dollars by Baker-MeDowell Hardware Company, to which Smith had previously sold it.
According to the state’s contention, this sale was the result of a scheme entered into by Smith and Baker-Me-Dowell Company to sell the automobile to the state at a grossly excessive price. The parties participating in this sale were the appellant himself, H. M. Alexander, president, and P. B. Liddell, an employee, of Baker-MeDowell Hardware Company, and Col. W. A. Montgomery, one *499of the trustees of the state penitentiary. According to their testimony, this sale came about in this way. Lid-dell, acting under instructions from Baker-McDowell Hardware Company, went to Insmore, appellant’s place of residence, in order to sell to him, if possible, a secondhand automobile owned by that company, and, as a result of his negotiations with Smith, he swapped this, automobile to Smith for his — the one afterwards sold to the state — Smith to pay one hundred dollars in cash in addition, the Baker-McDowell automobile to be delivered to Smith, at Insmore, and Smith’s automobile to be delivered to Baker-McDowell Company at Natchez.
A few hours after this trade had been closed, according to the testimony of Liddell and appellant, appellant suggested to Liddell that the automobile taken by Baker-McDowell Company in exchange for the one owned by it might be sold to the state, as W. A. Montgomery had been •directed to purchase one for one of the penitentiary farms. Appellant thereupon called Montgomery over the long-distance telephone, told him of the automobile, recommended its purchase, and then turned the telephone over to Liddell, who then sold the automobile to Montgomery for the sum of nine hundred dollars, and according to his testimony, and that of Montgomery, and that of Smith, was to deliver the automobile to Smith, at Ins-more. Montgomery, either then or a few minutes after-wards, reminded Smith over the telephone that the appropriation for the support of the penitentiary has been exhausted, and they could not purchase the automobile, unless Baker-McDowell Company would wait until the appropriation for the next year was available. Smith thereupon called up Alexander, president of this company, explained the situation to him, and Alexander ■ agreed that they would wait for their money until the ■appropriation for the next year was available.
Prior to this time, according to the testimony of appellant and of Montgomery, the purchase of an automo*500bile for one of the penitentiary farms had been determined on by them, and Montgomery instructed to purchase it; but no record thereof was entered on the minutes of the board of trustees. The other trustee did not participate in the authorizing of this purchase. The automobile was purchased with the intention on the part of Montgomery and Smith of using it at Belmont, one of' the state farms located near Tchula; but afterwards it was determined to take it to Parchman. Montgomery then, according to his testimony and that of appellant,, telephoned appellant to come to Edwards Montgomery’s place of residence, in the automobile, and that they, appellant and Montgomery, would take it from there'to Parch-man. This appellant did about ten days after its sale to-the state, and he and Montgomery started through the country to Parchman. The automobile broke down on the way, and they, being unable to proceed further with it, left it under a shed in charge of 'a Mr. E. B. Moore,, and directed Mr. Lee Richardson, the owner of a garage in Vicksburg, to have it repaired. The automobile-remained in that place for several months; was permitted to remain in the weather, and some parts of it to be-broken by cattle. Richardson during this time sent three different men there to repair it, and the evidence varies, as to the results accomplished by them; but suffice it to-say that the automobile was finally transported to Parch-man by rail, and has never since been in such condition that it could be used, and has, most of the time, been neglected and exposed to the weather, and at the time-of the trial was practically worthless.
In March, 1913, the account of Baker-McDowell Company for the automobile was presented to the board of trustees, allowed, and paid; Smith and Montgomery voting therefor, the other trustee voting, if at all, in the-negative.
The evidence as to the value of'this automobile at the-time of its sale to the state in October, 1912, was in hope*501less conflict, and that fact was one solely for the determination of the jury. There was evidence tending to show that at the time of the purchase of this automobile by Smith it was worth very much more than five hundred dollars, and tending to explain why it was that he was enabled to purchase it for that sum. There was also evidence in contradiction thereof.
In order for appellant to be convicted under this indictment, it was necessary for the jury to find as a fact that nine hundred dollars was, and to the knowledge of Smith, a grossly excessive price for the automobile at the time of its purchase. If it was sold to the state at a fair valuation, and in good faith, though unlawfully, in that the statute regulating purchasers by the state was not pursued, appellant is not guilty of the felony charged, even though at the time he voted to pay for the automobile it had decreased so much in value that the price paid was then grossly excessive. In my judgment therefore, the court below erred in refusing the following instructions requested by appellant:
“The court instructs the jury for the defendant that the value of the car in this case must be determined as of "the 8th day of October, 1912, the date on which the sale was made to the state of Mississippi.”
And:
“The court instructs the jury for the defendant that, unless they believe from the evidence in this case beyond all reasonable doubt that the automobile in question was not worth nine hundred dollars at the time it was sold to "the state in October, 1912, they will find the defendant not guilty, notwithstanding the fact that they may further believe from the evidence that since the sale to the state the car had deteriorated in value, and is not worth nine hundred dollars.”
It is true that, without reference to the value of the automobile, appellant may have been guilty of a misdemeanor by reason of is sale to the state; but he was not *502indicted for having committed a misdemeanor, but for the felony defined in the section of the Code hereinbefore set forth. After refusing these instructions, the court granted the state’s third instruction, which reads as follows :
’ “The court instructs the jury for the state that, if yon believe from the evidence beyond a reasonable doubt that under the contract made for the sale of a Buick car, to the state, that it was to be delivered by the defendant,. C. C. Smith, at the penitentiary farm at Tchula in good condition, then the sale was not completed until such delivery at Tchula in good condition; and if you further believe from the evidence beyond all reasonable doubt' that it was not delivered at the penitentiary farm at Tchula in good condition, and that the sum of nine hundred dollars was a grossly exorbitant price for the automobile at the time it was paid for by the trustees of the-state penitentiary, and that the defendant, knowing the price grossly exorbitant, voted to pay said sum of nine hundred dollars to the Baker-McDowell Hardware Company, and. that said sum was paid by the state, then it is the sworn.duty of the jury to find the defendant guilty as charged. ”,
It will be observed that this instruction eliminated from, the consideration of the jury practically all of what occurred at Insinore, or tó be more accurate, permitted the jury, even though it should believe that what occurred at Insmore was done in good faith, and that the automobile then was worth nine hundred dollars, to find a verdict of guilty if it had so decreased in value by the time it was paid for that nine hundred dollars was then a grossly exorbitant price for it. It is clearly erroneous, first, because it permits a conviction without reference to a fraudulent intent on the part of appellant in voting for the payment of the automobile; second, because there was no evidence that Smith agreed to deliver the automobile at Tchula; and, third, even had there been such evi-*503deuce, delivery at Tchula was waived by Smith and Montgomery.
If this automobile was, in fact, purchased in good faith in October, 1912, to be delivered at a future date, and when delivered was worth less than the purchase price,. Smith may have acted wrongfully in voting for its payment, and the fact that he did so vote may be evidence of a fraudulent intent on his part in so doing; but this-intent should have been found as a fact by the jury, and should not have been assumed as matter of law by the court. Moreover, he was not indicted for fraudulently voting for the payment of an automobile, but for the-fraudulent purchase of one; and his voting to pay was-material only as showing the consummation of a fraudulent purchase.
The record wholly fails to disclose any evidence that this automobile was to have been delivered' at Tchula.. In one of the briefs of counsel for appellant it is stated that such evidence appears in “the testimony of Kinsman on page 449 of the record, and Exhibit 3 to his-testimony, or Exhibit B, on page 490 of the record, ’ ’ and in “the testimony of Mr. Alexander, of the fifm of Baker-McDowell Hardware Company.” Kinsman knew nothing whatever of his own knowledge about this. He was-secretary and treasurer of the Baker-McDowell Hardware Company, and exhibited its books containing the-account of the state with this company showing the sale to it of this automobile, and following the entry thereof' appeared a memorandum, “Delivered at Penitentiary Farm at Tchula, Mississippi.” He staled that this was a transcribed entry; that he did not know how it came to-be made, or from what book it was transcribed. This-evidence was objected to by appellant, was incompetent, and should not have been admitted, and, even if competent, is insufficient of itself alone to establish, as against appellant, the fact that delivery was to be made at Tchula. All that Alexander testified to was that the au*504tomobile, was to be delivered “to the prison board of trustees,’.’ and that this delivery was to be made by Smith. On the other hand the only three persons who have any real knowledge of the place of delivery are Smith, Montgomery, and Liddell; and all three of them testified that delivery was to be made to Smith at Ins-more.
It may be that the jury would had been warranted in believing that there was, in fact, no sale to the Baker-McDowell Company, and by it to the state, but that all that occurred in fact was that Smith himself sold the .automobile to the state at a grossly exorbitant price in ■order to use the money thereby obtained in a purchase from Baker-McDowell Hardware Company of a new one, had that question been submitted to them under proper instruction; that this was not the question submitted to them by the instruction here under consideration, and a conviction was asked and obtained, without reference to that question at all. Even had there been an agreement to deliver the automobile at Tchula, Smith and Montgomery, by taking charge of it and starting to Parchman, waived that agreement in so far as Baker-McDowell Hardware Company was concerned, and if in ■so doing they acted in good faith, even though without authority so to do, no fraud would have been thereby perpetrated upon the state; and, in the absence of a fraudulent intent relative thereto, such waiver cannot constitute an element of the crime here charged.
In all that I have said with reference to the conduct of appellant, I have not meant to imply that he was guilty of no wrong, nor that he may not have been guilty of a crime; but what I do mean to say is that he was guilty of the crime here charged only in event that his acts were prompted by a fraudulent intent, and that the existence of this intent was a question for the determination of the jury.
The theory of counsel for the state is that this instruction was not erroneous, for the reason that guilt could *505be predicated alone upon appellant’s voting for the payment of the machine at a time when it was to his knowledge worth less than the price paid. And this was the-theory upon which they attempted to have the case tried, as evidenced by instructions presented to and refused oy the court below.
Their contention is stated in one of the briefs as follows :
“We contend that the board as a board never agreed to purchase this machine until they paid for it in March following the transaction; that Col. Taylor never was consulted in regard to the matter at all; that no order was ever placed upon-the minutes authorizing the purchase ; that no requirements of the statute were complied with in the purchase; and that the transaction was never in legal contemplation completed until the actual payment of the money by the trustees in February or March of the year 1913, at which time the machine was absolutely and confessedly worthless. -And if at that time-defendant, Smith, voted to pay for a machine a price-which he knew was grossly and patently in excess of its value, then he then and there committed a fraud upon the state, for he was a trustee of the state and bound to-protect its interests.
“He had been largely trusted by the people, and should' have seen that the state treasury was not plundered, and the fact that he did not do so, but with full knowledge-voted for an excessive payment out of the funds that had' been intrusted to his care, was a fraud in law and morals, and was so even irrespective of any statutes upon the-subject.”
The vice in this reasoning is that, conceding that the-statute was violated in the purchase of the automobile, the felony here charged was not committed, unless the-violation was prompted by an intent to defraud, and;, if the trustees believed in good faith that they had already purchased the automobile, and voted for its pay*506ment upon that theory, then the felony charged was not committed, even though it may have afterwards decreased in value.
The second instruction granted at the request of the state was as follows:
‘ ‘ The court instructs the jury for the state that, if you believe from the evidence in this case beyond all reasonable doubt that the defendant, C. C. Smith, in his capacity as trustee of the state penitentiary, voted for an order to pay Baker-McDowell Hardware Company the sum of nine hundred ($900) dollars of the state’s funds for the purchase of the automobile in question, and that said sum of money was paid in accordance with such •order, and that at the time of said purchase the defendant knew that nine hundred ($900) dollars was grossly in excess of the value of said machine, then it is the sworn •duty of the jury to return the following verdict: ‘We, the jury, find the defendant guilty as charged.in thé.in-dictment.’ ” . ;
This instruction, in addition to its failure to predicate guilt upon a fraudulent intent, was calculated to mislead the jury when read in connection with the stale’s instruc-lion No. 3, hereinabove set out, into believing that the value of the machine was not to be determined as of the •date of its purchase at Insmore, but as of the date on which appellant voted for its payment; and the error in ;so wording the instruction was emphasized by the modification made by the court to appellant’s tenth instruction. This instruction as requested was as follows:
“The court instructs the jury for the defendant that, unless they believe from the evidence in this case beyond nil reasonable doubt that the automobile in question was hot reasonably worth nine hundred dollars at the time it was sold to the state of Mississippi in October, 1912, and that the defendant knew it was not worth that sum .at that time, they will find the defendant not guilty, notwithstanding the fact that they may further believe from *507the evidence that since the sale to the state the car has •deteriorated in value, and is not worth nine hundred dollars.”
And the modification consisted in adding thereto the followini ,
“Unless the jury believe from the evidence beyond all reasonable doubt that under the contract it was to be delivered by defendant, C. C. Smith, at Tchula, Mississippi, in good condition.”
In order to establish appellant’s fraudulent intent, the state introduced testimony showing that this automobile was not purchased in the manner in which the state claimed was contemplated by the statute; that is, that it was purchased by these trustees, without an advertisement for competitive bids therefor having been made. In order to show that .this violation of the statute., if .such it was, was committed in good faith, and with no fraudulent intent, appellant sought to prove on the cross-examination of Leroy Taylor, one of the trustees and a witness for the state, but, on objection by the state, was not permitted to do so, that since the organization of the board of trustees the statute had been uniformly construed by the executive officers of the state, including the-attorney-general, as not requiring an advertisement for bids for the purchase of property of the character here under consideration. This evidence should have been admitted, for, as I have hereinbefore stated, the fact that a misdemeanor may have been committed does not warrant a conviction for the felony charged, unless the misdemeanor resulted in a fraud upon the state, and was prompted by a fraudulent intent.
The testimony with reference to the sale of this automobile by Withers to Smith all showed that the sale was intended to be for cash; that credit therefor was neither asked by Smith nor promised by Withers. Over the objection of appellant, the state was permitted to prove that Smith did not, in fact, pay for the automobile *508at the time of its purchase, and that at the time of the-trial he probably owed a balance on it. He seems to have had a running account with Withers which aggregated about seven hundred dollars, and at the time of' the trial there was due on this account the sum of about one hundred dollars. This evidence was probably admissible in order to contradict Withers and Smith, and to show that the sale, in fact, was made on a credit basis, and therefore that the cash price of the automobile at that time was less than five hundred dollars; but granted that it was erroneously admitted, I do not think appellant sustained any substantial prejudice thereby.
The trial in the court below was had nearly a year-after the sale of the automobile to the state, and after it had received the treatment which I have hereinbefore set out. Over the objection of appellant, the state was-permitted to prove by witnesses who had inspected the automobile a few days previous to the trial that it was. then practically worthless. This evidence should not have been admitted. It was admitted, I presume, on the theory that it tended to establish the value of the automobile at the time of its purchase; but, if there is any presumption that the value of an article to-day is the same that it was at any given previous time, it must be shown that it is to-day in the same condition that it was-on the previous occasion. It cannot be said that, if the automobile was practically worthless at the time of the trial, this evidenced the fact- that it was of little value when purchased because, had it not been so, it would not have deteriorated so greatly in value in that time, for the reason that the evidence shows that it was handled after its purchase in an unusual manner, and in such a way as-would probably'have rendered even the best of automobiles practically worthless.
Several months after the automobile had been left by Smith and Montgomery with Moore it was shipped by rail to Parchman, and the state, over the objection of *509.appellant was permitted to prove that the freight thereon was paid by the board of .trustees, and also to prove that after it reached Pacrhman an attempt was made to repair it, and the expense thereof was paid by the board of trustees. This evidence should not have been admitted, as it could have no bearing on the good faith of the trans.action which occurred at Insmore. I presume that it was admitted on the theory that the car had never been -delivered, and that any expense attached thereto should have been borne by Smith or Baker-McDowell Company, -and not by the trustees, and therefore tended to show a fraudulent intent in the original purchase of the car. As I have hereinbefore pointed out, the delivery, in so far as this case is concerned, was completed at Insmore.
The indictment contained originally a count charging appellant with the commission of a felony because of his having voted for the payment of these items; but a demurrer was interposed thereto and sustained.
For these reasons, I think the judgment of the court below should be reversed, and a jury, upon proper evidence, and under proper instructions be permitted to pass upon the bona fides of the transaction which occurred at Insmore, for appellant’s guilt vel non of the felony, with the commission of which he is charged, depends solely upon the solution of that question; and it, by the instructions hereinbefore referred to, and which were not cured by any of the other instructions granted was, in my judgment, entirely withdrawn from the jury’s •consideration.