State v. Browne

HUSTON, J.

The defendant in error, Browne, was jointly indicted with one John Gilstrap and one Isaac C. Hattabaugh for violating the provisions of subdivision 4 of section 6975 of the Revised Statutes of Idaho. Said section provides, inter alia: “F;ach officer of this territory [state], or of any county, city, town or district of this territory [state], and every other person charged with the receipt, safekeeping, transfer or disbursement of public moneys, who .... [subdivision 4] deposits the same or any poation thereof in any bank or with any baoiker or other person, otherwise than on special deposit, ¡ ... is punishable by imprisomnent in the territorial [state] prisooa for not less than one nor more than ten years, and is disqualified from holding any office in this territory [state].” The indictment charges, in substance, that Gilstrap, one of the defendants, was, at the general election held in November, 1894, elected to the office of treasurer of Latah county; that, subsequent to his said election, and on the 24th of December, 1894, said Gilstrap entered into a written contract with the other defendants, Brown and Hattabaugh, by the terms whereof he (the said Gilstrap) agreed to deposit in the Moscow National Bank, of which said Browne was president, and the Commercial Bank, at Moscow, of which said Hattabaugh was president, “any and all sonns of money belonging to said Latah county, state of Idaho, coming into the possession of or under the control of the said John Gilstrap as treasurer of said Latah county; that, in pursuance of said contract, the said John Gilstrap did, as such treasurer as aforesaid, deposit with said banks large sums of the anoneys of said Latah eoointy, which had come into his hands as such treasurer as aforesaid.” Defendants segregated on trial, and defendant, Browne was tried and acquitted. This writ of error is sued out *726 by the state for the purpose of reviewing certain alleged errors of the district court upon said trial.

The first question presented for our consideration is the ruling of the district court in the matter of the impaneling of the trial jury. Section 7830 of the Bevised Statutes provides that *cif the offense charged is punishable with death, or with imprisonment in the territorial [state] prison for life, the defendant is entitled to ten, and the territory [state] to five peremptory challenges. On trial for any other offense, the defendant is entitled to six and the territory [state] to three peremptory challenges.” Section 7848 of the Bevised Statutes provides that, “after the jury is passed for cause, both parties alternately, beginning with the people, may take their peremptory challenges. But no challenge is lost by failure to alternate if the panel is opened by the other party; and each party is entitled to a full panel before exercising a peremptory challenge.” In this case the trial judge required the state to make one peremptory challenge, and then the defendant one. This course would result in leaving the defendant with four peremptory challenges after the state has exhausted its number. We can conceive of but one theory upon which such rule could obtain, and that is that the criminal practice acts of this state are enacted for the protection of criminals — a doctrine which this nour-t is by no means prepared to recognize. Where the statute 'gives to the state in criminal cases only one-half the number of peremptory challenges allowed the defendant, and requires such ■challenges to be made alternately, the defendant should be re-qnired to exercise two to the staters one. Any other rule would almost inevitably result in a complete subversion of the ad■ministration of the law in justice, as well as nullify all idea eof alteration.

The next, and we believe the only other, question raised by this, record, is in regard to the following instruction: “Yon must go further, and find, from the evidence, beyond all reasonable doubt, that in making said contract, and in making and receiving said deposit, the defendant and Gilstrap had a corrupt, fraudulent and felonious intent to cheat and defraud Latah county out of its money or property, or some part thereof.” That the district court, in giving this instruction, entirely *727 lost sight, not only of the limitation which both the constitution and the laws place upon judicial functions, but overlooked or ■abrogated both the letter and the clear purpose of the statute upon which the indictment was based, is apparent. The statute for the violation of which defendant was indicted makes it a penal offense for any of the officers enumerated therein to deposit any public moneys, with the receipt, safekeeping, transfer or disbursement of which such officer is charged, "in any bank, ■or with any banker or other person, otherwise than on special deposit.” Under the construction given by the district court to this statute in the instruction above cited, the statute is to all intents and purposes nullified both in letter and in spirit. It may be assumed that, at the time the defendants entered into the contract, they, nor either of them, had any intention of corruptly, fraudulently or feloniously cheating, wronging, or defrauding Latah county out of its money or property, or any part thereof. Nor was it essential or necessary to the establishment of their guilt under the indictment, that any such intent on their part should either.be alleged, proven or found by the jury. No such language as that contained in the instruction is found in the statute, nor is any such intent made by the statute, nor ■can it be made, by any recognized legal rules of construction, an ■essential element of the crime defined in the statute. The statute is preventive. It contains ten subdivisions, specifically defining the acts which officers charged with the care and disbursements •of the public funds are prohibited from doing, and the doing ■of either by such officer is punishable as a felony. If the obligations imposed upon this class of officers by the statute are •onerous, or not in accordance with what business men conceive to be the best interest of the public, they should secure its repeal, or else care should be taken not to bring their consideration before the courts. It is the-duty of the court to construe the larv as it is, not as some would like to have it. To protect the revenues of the state, certain laws have been enacted. These laAvs are preventive in their character, but they are none the less •obligatory. If courts can assume to say that the evil which the law was intended to prevent was never contemplated by the accused, Avhen he violated the express provision of the law, and therefore he is not amenable, we might as well do away -with *728 the legislative branch of the government, and rely entirely upon “judge made law.” It should seem as though the legislature of our state had done their full duty in enacting statutes for the protection of the revenues of the state, and yet defalcations and misfeasance of public officers would almost appear to be the rule. If it were exactly known what percentage of our taxation arises from the defalcation of officers and the misappropriation of the-public funds, and to what extent the public interest is' sacrificed to private greed, it might not be so difficult to account for the “hard times” and high taxes of which all are complaining.

The ruling of the district court in requiring the defendant to exercise but one peremptory challenge to one by the state was. error, and no such rule has ever obtained in this state outside of the present second judicial district. The instruction of the court- as above cited was erroneous, and did not state the law.

Morgan, C. J., and Sullivan, J., concur.