Opinion
No. 33330.
November 28, 1938.
1. FALSE PRETENSES.
The statute allowing county superintendent of education in first class counties an office assistant and authorizing board of supervisors in second and third class counties to employ clerical assistant in county superintendent's office does not create "public office," but simply provides for employee, who is not subject to indictment as "public officer" for attempt to defraud county ( Code 1930, secs. 6498, 6567).
An "office" has been defined as a public charge or employment and held to imply delegation of portion of sovereign power to person filling office for exercise in his own right, while "public officer" has been defined as one having some duty to perform concerning public and "deputy" as one appointed, designated or deputed to act for another and one exercising office in another's right by appointment.
2. FALSE PRETENSES.
Variance between indictment, charging that accused, being public officer of county, to wit, "assistant county superintendent of education," attempted to defraud county, and evidence tending merely to show that he helped at times in office of such superintendent, was fatal to his conviction of such offense, as statute providing for assistants in superintendent's office did not create office of assistant county superintendent of education (Code 1930, sec. 6567).
APPEAL from the circuit court of Leake county; HON. D.M. ANDERSON, Judge.
David E. Crawley, of Kosciusko, for appellant.
In the Code of 1930, Chapter 163, in the chapter on schools, in paragraph 6567, we find the only authority that exists under the laws of the State of Mississippi for an assistant superintendent of education: "In counties of the first class the superintendent of education shall be allowed an officer assistant and the salary of said assistant shall be not more than $1500 per year, payable monthly out of the common school funds, on an order of the board of supervisors. The board of supervisors in counties of the second and third classes is authorized in its discretion to employ a clerical assistant in the office of the county superintendent at a salary of not more than $1200 per year, payable out of the common public school funds on the order of the board of supervisors."
This indictment is evidently drawn under Section 896 of the Code of 1930.
Inasmuch as this indictment is predicated upon the theory that the defendant, J.R. Waggoner, was a public officer, to-wit, an assistant county superintendent of education, there rested upon the state the obligation to prove beyond a reasonable doubt that he was in truth and in fact a public officer of Leake County, Mississippi, to-wit, an assistant county superintendent of Education, and we respectfully submit that the record in this case wholly fails to sustain that material averment in the indictment. There is no proof to the effect that he occupied said office. The only height to which the proof rises is a circumstance that he was occasionally engaged in and about the performance of some clerical function under the direction of his mother, Mrs. C.K. Waggoner, who was the superintendent of education.
Page v. State, 133 So. 216, 160 Miss. 230.
The indictment charges no offense under the laws of the state of Mississippi. Being an indictment for an attempt, the indictment must aver first the intent to commit the offense and, second, an overt act toward its commission.
Section 26, Constitution of 1890; Miller v. State, 130 Miss. 730; Stapleton v. State, 130 Miss. 737; Cunningham v. State, 49 Miss. 685.
We respectfully submit that the mere statement in the indictment at bar to the effect that the defendant did issue and deliver said false and fraudulent teachers pay certificate is not sufficient. The indictment shows on its face that said certificate had not been endorsed nor had it been assigned, which circumstance is absolutely necessary in order to give it life.
We take the position that it was not necessary to raise this point by demurrer; this is not such a defect in an indictment as requires a demurrer to be presented; it is a failure to comply with a constitutional privilege which cannot be waived under the law, and the fact that the defendant did not interpose a demurrer and present the same to the trial court is no bar to presenting the matter for the first time on appeal.
1 Bishop's New Criminal Procedure (4 Ed.), par. 81.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
The proof in this case not only failed to show that the appellant in this case was an assistant superintendent of education, but what there is in the case tends to show that appellant merely assisted his mother at such times as were convenient and he had no official connection with the office at all. It shows that he helped his mother, just as other brothers and sister did at various times.
There was no motion to exclude when the state rested, nor did appellant request a peremptory instruction at the close of the case.
A motion for a new trial was filed which stated as one of its grounds that the verdict was contrary to the law and evidence and was against the overwhelming weight of the evidence. We take it that, under these allegations, appellant may insist here that there was a failure of proof as regards the allegation that he was a public officer of the county and committed the acts charged in an official capacity.
This court has, in two recent cases, said that the state is bound by the allegations of its indictment and that proof must correspond thereto.
White v. State, 174 So. 562; Walker v. State, 172 So. 138.
We submit that, under these two decisions of the court, the state was bound to show that the appellant was acting as an officer of Leake County in perpetrating this alleged fraud and that its failure to do so presents a case where the proof does not support the material allegations of the indictment.
We submit that the indictment properly charges an overt act when it states "and in pursuance to said attempt to defraud, did then and there unlawfully, wilfully, feloniously and out of gross omission of duty, issue and deliver the following pay certificate, to-wit," and then set out, in full, the pay certificate which was issued. Any act of the parties in connection with carrying out the intent to commit the offense is sufficient.
Mrs. C.K. Waggoner and J.R. Waggoner were jointly indicted as public officers of Leake County for an attempt to defraud the county by the issuance of a certain pay certificate addressed to the clerk of the board of supervisors. J.R. Waggoner was separately tried and convicted and sentenced to serve a term in the penitentiary, and appeals here.
It is unnecessary for us to state the facts of the case as we have to consider only one assignment of error, to-wit; that there was a total failure of proof as to the certain allegations of the indictment with reference to the official capacity of the accused, J.R. Waggoner.
It is pertinent to state a part of the indictment as follows: "that Mrs. C.K. Waggoner and J.R. Waggoner in said County of the 24th day of August, A.D. 1935, being then and there public officers of Leake County, Mississippi, to-wit: County Superintendent of Education and Assistant County Superintendent of Education respectively, of Leake County, Mississippi, did then and there unlawfully, wilfully, and feloniously and out of gross omission of duty, attempt to defraud the County of Leake etc.," and the words, "out of gross omission of duty," follows in charging the attempt to defraud. The main instruction granted to the jury on behalf of the state followed closely the verbiage of the indictment.
The evidence wholly failed to show that J.R. Waggoner was a public officer, or that he was the assistant county superintendent of education, either by appointment of the principal, the county superintendent of education, or the board of supervisors. All the evidence tends to show that J.R. Waggoner, along with several other adult children of Mrs. Waggoner, at times helped in the office.
Section 6498 in Chapter 161 as to salaries classifies the counties in eight classifications, it providing that "number one Shall be composed of all counties in which the assessed valuation equals and exceeds $25,000,000.00;" and "number eight Shall be composed of all counties in which the assessed valuation is less than $3,000,000.00." The other classifications vary.
Section 6567 in the Chapter on Schools in Article 5 thereof relative to county superintendent of education provides:
"May employ clerical help. — In counties of the first class the superintendent of education shall be allowed an office assistant and the salary of said assistant shall be not more than $1,500.00 per year, payable monthly out of the common public school funds, on order of the board of supervisors. The board of supervisors in counties of the second and third classes is authorized in its discretion to employ a clerical assistant in the office of the county superintendent at a salary of not more than $1,200.00 a year, payable out of the common public school funds on the order of the board of supervisors.
"The board of supervisors in any county having two judicial districts and having an assessed valuation of more than eight million and less than ten million dollars, is authorized in its discretion to employ a clerical assistant in the office of the county superintendent of education, at a salary of not more than twelve hundred ($1,200.00) dollars per year, payable monthly on the order of said board out of the general fund of the county."
The attorney general concedes that there was a fatal variance in this case because, as he says, this court judicially knows that Leake County did not fall within any of the three classifications mentioned in the foregoing section, and that the court also judicially knows that Leake County has only one judicial district. Therefore, the said section could have no application to Leake County if it be conceded that such an assistant is an officer.
We think the case is solvable upon the patent and safe ground that the section here in question does not attempt to create a public office within the meaning of our laws and constitution. We prefer not to resort to judicial knowledge unless, and until, it is absolutely necessary. This statute in counties of the first class allows the county superintendent of education to have an office assistant at an annual salary payable monthly. The further provision authorizes the board of supervisors to employ a clerical assistant in the office of the county superintendent of education at a salary.
This section does not attempt to create an office in any county in this state. It simply provides for an employee under certain conditions therein set forth. The mere office assistant or clerical assistant therein allowed is not vested with any prerogative of a public officer. None of the earmarks of a public officer are to be found therein. No specific duty is required to be performed, and no individual power is vested in the employee named as an office assistant or a clerical assistant in the office. With reference to a deputy land commissioner and a deputy auditor, this Court in the State ex rel. Brown v. Christmas, 126 Miss. 358, 88 So. 881, said:
"An office, broadly speaking, is a public charge or employment, and a public officer, also broadly speaking, is one who has some duty to perform concerning the public; but in the constitutional sense —
"`The term "office" implies a delegation of a portion of the sovereign power, and the possession of it by the person filling the office.' Shelby v. Alcorn, 36 Miss. 273, 72 Am. Dec. 169.
"This definition carries with it ex vi termini the further idea that the power delegated must be exercised by the person in his own, and not in another's, right. A deputy does not come within the definition, for a deputy is —
"`One who is appointed, designated, or deputed, to act for another; one who by appointment exercises an office in another's right.' 18 C.J. 784."
No duty is required of an office assistant or a clerical assistant within the meaning of the above decision. J.R. Waggoner was not a public officer and could not be under the provisions of Section 6567.
There is not under this section within the state the office of assistant county superintendent of education. Therefore, we conclude that the variance is fatal to the conviction herein. John v. State, 24 Miss. 569; Dick v. State, 30 Miss. 631; Tyler v. State, 69 Miss. 395, 11 So. 25; Taylor v. State, 74 Miss. 544, 21 So. 129; White v. State, 178 Miss. 650, 174 So. 562.
Reversed and remanded.