State v. Denton

MoSherry, J., delivered the opinion of the Court. The appellee was indicted by the grand jury of Howard County for embezzlement. The indictment alleged, in substance, that in July, 1889, Denton was clerk to the County Commissioners of Howard County, and that he received and took into his possession for and on account of his employers, the said County Commissioners, a certain sum of money, the property of the County Commissioners, and that he thereafter fraudulently and feloniously embezzled, secreted, and made away with the same. This count of the indictment was framed under and founded on see. 75, Art. 27 of the Code.

The second count charges'the larceny of one hundred and nine dollars and seventy-two cents, “current money, a more particular description of which said money the jurors aforesaid have not and cannot give.” Each count was demurred to, and the Circuit Court having sustained the demurrer, the State has brought the record into this Court by petition as upon writ of error. The 75tA sec. of Art. 27 of the Code provides that “whosoever, being a cashier, servant, agent, or clerk to any person, or to any body corporate, or being employed for the purpose or in the capacity of a cashier, servant, agent, or clerk by any person or body corporate, shall fraudulently embezzle any money, **,*** which, or any part whereof, shall be delivered to or received, or taken ⁵¹⁹ into possession by him, for or in the name or on the account of his master or employer, shall be deemed to have feloniously stolen the same from his master or employer," &c. It is insisted that a clerk to the County Commissioners is a public officer and, therefore, not within the purview of this statute, though it is not conceded that sec. 80 of the same Article is applicable to him. This latter section enacts, that “ any person holding office in this State, whether elected or appointed by the GFovernor, by the corporate authorities of Baltimore, or by any other authority legally authorized to make such appointments, who shall fraudulently embezzle or appropriate to his own use money, funds, or evidences of debt which he is by law bound to pay over, account for, or deliver to the treasurer of this State, or to any other person by law, authorized to receive the same, shall be guilty of a misdemeanor," &c.

By section 1, of Art. 25 of the Code it is provided that “the County Commissioners of each county in this State are declared to be a corporation, and shall have full power to appoint * * * road supervisors, collectors of taxes, trustees of the poor, a clerk to their board, and all other officers, agents, and servants required for county purposes," &c. By the local laws of Howard County, Art. 14, sec. 44, Public Local Laws, it is enacted that “the County Commissioners may appoint a clerk, and allow him a salary not exceeding five hundred dollars per annum; and they may prescribe his duties, and may require him to give bond for the faithful performance of those duties." We think it perfectly clear that sec. 80, of Art. 27 of the Code has no application to the case at bar, and unless sec. 75 is broad enough to cover it, there is no provision in the criminal law of Maryland to reach the appellee. As a consequence, he, and a very large class of other persons holding similar positions of a public or quasi ⁵²⁰ public character, could embezzle with absolute impunity. This, it may be safely assumed, was never intended by the Legislature; and the statutes ought not to be so construed as to bring about such a result, if they are capable of being fairly interpreted in a way to embrace every fraudulent misappropriation on the part of those who hold appointments or employments or relations of trust.

It is true that sec. 80 applies to public officers, but not to all public officers. That section is restricted and confined to such public officers as are required by law to account, j>ay over, or deliver to the treasurer of this State, or to any other person bylaw authorized to receive-the same, any money, funds, or evidences ^of debt, &c. If the officer be a public officer, and yet not be required by law to account with or to pay over to the State treasurer, or to some other person by law authorized to receive the money, he is not within the 80th sec., even though he should embezzle the funds which came into his hands. And he is not within the 80i7i sec. because-he does not belong to that class of public officers described in and intended to' be affected by that section.

Now, the law imposes on the clerk to the County Commissioners no duty to collect or to pay over any money, either to the State treasurer or to any one else; and, whether he be treated as a public officer or a private servant, he does not fall within the class at which sec. 80 was manifestly levelled. His tenure o£ the position is at the will of the board appointing him. His duties, with two or three unimportant exceptions under Art. 51, sec. 6, and Art. 81, secs. 42 and 43, of the Oode, are no where defined in the Code, and his compensation, payable out of the public revenues of the county, is fixed and regulated by the County Commissioners. He exercises no power, apart from the exceptions just indicated, which is not performed for and on behalf of his employers.

He has no independent functions, and no duties- ⁵²¹ beyond, those prescribed from time to time by the Commissioners who have appointed him. He is in every respect subordinate to them, and in no particular independent of them. Every act that he does is done, not in virtue of an independent official position held by him, hut as the clerk, the agent or the servant of a superior. He acts for them and as they direct, and not otherwise.

He is, in fine, just what sec. 1, Art. 25 calls him, a clerk to a body corporate, appointed by that body, subject to its authority, and, consequently, its employé. Between him and the County Commissioners all of the ordinary attributes of service exist. The reasons just given for excluding the appellee from the operation of the 80th sec. bring him clearly within the scope of the 15í7¿ sec. He is a clerk to a body corporate and as such clerk, according to the concessions of the demurrer, he fraudulently embezzled money received by him for and on account of his employer.

The fact that he is a clerk to a public corporation does not put him outside of the ⁷⁵¿7z sec. because that section is broad enough to embrace public as well as private corporations; nor does the circumstance that his salary is paid out of the public revenue of the county affect in the slightest degree his liability under this statute, because the mode of payment does not determine the character of the office held — that is, does not make it an independent office, if it he not otherwise so. The Act of 1820, ch. 162, as amended by the Acts of 1880, ch. 458, and 1886, ch. 310, forms sec. 15, of Art 21 of the Code. As originally passed it was nearly an exact transcript of 39 Geo. III, ch. 85, adopted in 1799.

In 1818, (two years prior to the passage of the Act of 1820, ch. 162,) the case of Rex vs. Squire, Russ. & Ry., 349, arose under 39 Geo. III, ch. 85. In that case (which is also reported in 2 Stark. N. P. C., 349,) the prisoner was tried before Mr. Justice Bayley on an indictment for embezzling