State v. Brandt

Miller, Ch. J. —

The appellant’s counsel assign as error the overruling of their motion to set aside the indictment.

It is provided in section 4337 of the Code, that the motion to set aside the indictment can be made on the ground, among others, “ that the grand 'jury were not selected, drawn, summoned, impaneled or sworn as prescribed by law,” and that the motion “ must be sustained.” The statute, (Code, section 4538,) also provides that this court, on appeal, must examine the record, and without regard to technical errors or defects, which do not affect the substantial rights of the parties, render such judgment as the law demands.”

i. criminal of grand jury, If) therefore, there has been no substantial departure from the requirements of the law in the selection, drawing, etc., of the grand jury, affecting the substantial rights of the defendant, the motion to set aside the indictment ought not to be sustained, or in other words this court should give judgment without regard to mere technical errors or defects in this respect. On the other hand, if the errors or defects are of such a character as to affect the substantial rights of the defendant, the motion “ must be sustained.” See The State v. Carney, 20 Iowa, 82; The State v. Ansaleme, 15 Iowa, 44.

The statute provides that a jury list of seventy-five persons to serve as grand jurors shall annually be made in each county, from which to select for the year, commencing on the first day of January. Code, section 234. The auditor of the county is required, on or before the first Monday of September in each *601 year, to apportion the number to be selected from each election precinct, as nearly as practicable in proportion to the number of votes polled therein at the last general election, and deliver a statement thereof to the sheriff, who must deliver a written notice to one of the judges of election in each precinct, of the number of jurors to be returned therefrom. Code, sections 236, 237.' The judges of election are required to make selections of jurors as stated in the notices respectively, and return lists of the names selected to the auditor with the returns of the election, and, in case the judges fail to make and return lists as required, the county canvassers at their meeting to canvass the votes polled in the county must make lists for the delinquent precincts, and the lists are to be filed in the county auditor’s office. Code, Sec. 2381

Grand jurors are to be selected for the first term in the year at which jurors are required, commencing next after-the first day of January in each year, and serve for one year. Code, Sec. 239. ‘ At least twenty days prior to the first day of any term at which a jury is to he selected, the auditor, or his deputy, must write out the names on the lists aforesaid which have not been previously drawn as jurors during the year, on separate ballots, and the clerk of the District Court, or his deputy, and the sheriff having compared said ballots with the lists, and corrected the same if necessary, shall place the ballots in a box provided for that purpose.” Code, Sec. 240. The next section provides that' after thoroughly mixing the ballots thus placed in the box, the clerk or his deputy shall draw therefrom the requisite number of jurors to serve in the capacity of grand or petit jurors as the case may be. The clerk then issues a precept to the sheriff who is required to summon the jurors to appear, etc. Code, Secs. 241, 242.

These provisions of the statute point out the manner of selecting and drawing the grand jurors.

2‘ ' — ' I. The grand jury which found the indictment in this case were drawn to serve for the year 1874. The proper number had been selected and returned by the judges of election in all of the election precincts of the county except one. From Franklin township no names were *602 returned as grand jurors. The county canvassers also neglected to make any list for this township at their meeting to canvass the votes, but two of the members of the Board of Supervisors in December, 1873, then in session for a special purpose, supplied two names from the delinquent township, none of which, however, were drawn on the grand j nry that found the indictment in this casé. That the list of grand jurors to the number of seventy-three persons were regularly selected and returned as prescribed by the statute, there is no doubt. Does the irregularity in the selection of the two grand jurors from Franklin township so affect the substantial rights of the defendant, as that the grand jury should be held to be an illegal body? We think this question must be answered in the negative upon the authority of The State v. Carney, and others, supra. Two of the indictments in that case were found by a grand jury selected from the list of seventy-three instead of seventy names, and it was held to be a substantial compliance with the statute.

3.-: —: power °f aep II. It will be seen by reference to section 240’ of the Code, above set out, that certain specific duties are enjoined upon the officers there named, in connection with the 0f jurors. It is made the duty of the •auditor or his deputy, to write out the names of the jurors found on the lists as returned by the judges of election, on separate ballots. The clerh or his deputy, in conjunction with the sheriff, is required to compare the ballots with the lists and correct the same if necessary. The officers here named are empowered to perform the duties specified. • The statute nowhere provides that they may be performed by any 'other officers or persons, or in conjunction with any other’. Section 767 of the Code provides that “when any officer is required to act in conjunction with, or in place of another officer, his deputy cannot supply his place. It follows, therefore, that the deputy sheriff cannot supply the place of the 'sheriff, who is required to act with the clerk or his deputy in comparing the ballots with the lists of jurors, and correcting the same if necessary. It was so held in Dutell v. The State, 4 G. Greene, 125; and it was further held in that cáse that a *603 grand jury, where the ballots and lists had been compared and corrected by a deputy sheriff in connection with the county judge, was an illegal body, and not authorized to find an indictment.

_. _. rule applied. In the case before us the deputy sheriff acted in conjunction with the clerk in comparing the ballots with the lists, and in' correcting the same. The sheriff was not present an¿ not aet. The case comes cleai’ly within the case last cited. The defect here appearing is not a mere technical one, not affecting the substantial rights of the defendant. It is not a mere irregularity, but the objection goes to the jurisdiction of the officers to do the act. The deputy sheriff had no more authority to act in the premises than any private individual, and the duty, being one to be performed by-two officers, cannot be performed by one only, nor by one authorized officer and a private person or unauthorized officeiv

The comparing of the ballots with the lists is an important- and material act. This duty is required so that mistakes shall not occur in writing the ballots by writing names thereon that are not contained on the lists. It is required in order that the same persons, and none other, shall be drawn who have been returned as jurors by the judges of election. This is the method adopted by the law for the purpose of selecting grand jurors from the body of the county, good and true, for the purpose of inquiring into offenses committed or triable within the county; It is not only essential that these acts be performed, but it is also essential that they be done by the officers appointed by the law to perform them. If the trial of the cause should be had before some person not authorized to act as judge, a conviction, although obtained -in strict accord with all the forms and rules of the law in every other respect, would be void. Michales v. Hine, 3 G. Greene, 470; Winchester v. Ayres, 4 Id., 104; Smith v. Frisbie, 7 Iowa, 486; Petty v. Duval, 4 G. Greene, 120; Wright v. Boon, 2 Id., 458; Smith v. Grimwood, June term, 1859, unreported, Ham. Digest, 532; and it would not do to say that there was no prejudice to the substantial rights of the defendant, where thus tried and convicted by an unauthorized tribunal. So, in this case, the *604 defendant is prejudiced in- his substantial rights in that the duty of comparing the ballots with the lists of grand jurors, and correcting the same, was not performed by the persons who alone under the law are empowered to discharge that duty. The abstract in this case shows that various corrections in the lists were made by the auditor and deputy sheriff.

The • defendant is entitled to be indicted and tided in substantial compliance with the law, and by the officers appointed by the law, and when he has been indicted or tried by others than those selected by law he is prejudiced in his substantial rights. So, too, if any material step in the proceedings be performed by a person having no authority to do so. The language of the statute is that when “ the grand jury have not been selected, drawn, summoned, impaneled or sworn as prescribed by the law,” “ a motion to set aside the indictment” may be made and “ must be sustained.” Where the duties prescribed are performed by the officers or persons authorized and appointed by the law, immaterial departures from the manner of doing acts specified, which do not prejudice the substantial rights of a defendant accused of a public offense, will not afford grounds for setting aside an indictment, the'statute being in this respect directory. State v. Carney, supra. But when the acts required by law to be performed by certain officers are not so done by them, but by unauthorized persons, it is as if not done at all; it is of the essence of the act that it be performed by the officers or persons designated by law.

The case of Dutell v. The State, supra, involved the precise point under consideration; there the deputy sheriff acted in conjunction with the county judge in comparing the ballots with the lists of grand jurors; here the deputy sheriff acted with the clerk; in neither case had the deputy sheriff any authority to act.

The indictment was held to have been found by an unauthorized body because the deputy and not the sheriff thus acted. This defect or irregularity in the election of the grand jury is fatal, because the statute so declares; and it also expressly provides that such defect may be attacked by a *605 motion to set aside the indictment. In this respect, the election or selection of grand jurors is different from that of justices' of the peace or other officers, for as to them the statutes provide another mode for contesting their election, and until such contest their acts duly performed are binding; whereas the‘time and manner of contesting the election of grand jurors is after they have acted, and by motion to set aside the indictment found by them, as was done in this case.

5.-: fore-3ury.oi SI‘and III. Before the organization of the grand jury, twelve only of the regular panel answered' to their names when called,' four were excused, and the panel was filled from the by-standers by the sheriff, under the direction' of the court; whereupon the court appointed J. B. Miller — a talesman — as foreman of the grand jury. It is insisted that this was erroneous and rendered the grand jury an illegal body.

The statute provides that “from the persons summoned to* serve as grand jurors the court must appoint a foreman; the court must also appoint a foreman when the person already appointed is discharged, excused, or from any cause becomes-unable to act before the grand jury is finally discharged.” Code, Sec. 4267. It is “ from the person's summoned to act-as grand jurors” that the foreman is to be selected. .The regularly drawn grand jurors are required to be “ summoned ”• by the sheriff, upon a precept issued by the clerk. Code, Secs. 241, 242. "When, from any cause, the persons thus summoned fail to appear, or when, from any cause, the court shall decide that they have been illegally elected, etc., and shall set aside the precept, the court must cause another precept to be issued to the sheriff “ commanding him to summon a sufficient number of persons from the body of the county to serve, etc.Code, Sec. 244. “ -Persons summoned by the' sheriff to supply a deficiency in the requisite numbers of grand jurors serve only for the term at which they .are summoned.” Code, Sec. 4257.

From these provisions of the statute it is plain that it was not the intention of the legislature to restrict the court, in the appointment of a foreman, to those jurors summoned as *606 regularly drawn grand jurors to serve for a year, for the statute uses the word “ summoned ” in respect to all the persons required to serve as grand j urors, whether as regular drawn jurors or as talesmen.

■ The motion to set aside the indictment should have been sustained for the reason that the deputy sheriff and not the sheriff acted in conjunction with the clerk in comparing the ballots with the jury lists returned by the judges of election, and in correcting the same. In all other respects the law was substantially complied with.

6_. wh0 is an officer. IY. Appellant’s counsel insist that the court erred in overruling their demurrer to the indictment. It is claimed that the facts charged do not constitute the crime 0f embezzlement. The statute under which the indictment is drawn is as follows: “If any officer within this State charged with the collection, safe keeping, transfer, or disbursement of public money, unlawfully convert to his own use in any way whatever, or use by way of investment-in any kind of property, or loan, without the authority of law, any portion of the public money intrusted to him for collec-' tion, safe keeping, transfer, or disbursement, every such act is an embezzlement of so much of said money as is thus taken, converted, invested, used, loaned or unaccounted for, and upon conviction thereof he shall be imprisoned in the penitentiary not exceeding five years, and fined in a sum equal to the amount of money embezzled,” etc. Eevision, Sec. 4243. It-is first claimed that the deputy state treasurer is not an “ officer ” within the meaning of this section of the statute. In this we cannot concur. The statute authorizes the state treasurer to appoint a deputy, for whose acts he is responsible, and from whom he must require a bond. The appointment must be in writing and approved by the governor, and the appointment must be filed and kept in the office of the secretary of state. Eevision, sections 560, 642.

The deputy must take the same oath as his principal, which must be indorsed upon and filed with the certificate of his appointment. ' Eevision, Sec. 647. Every civil officer who is-required to give bond, must take and subscribe “ an oath that *607 he will support the constitution of the United States and that of the State of Iowa, and that to the best of his knowledge and ability he will perform all the duties of his office (naming it), as provided by the condition of his bond.” Revision, Sec. 561. Erom these various provisions of. the statute it is evident that the deputy state treasurer is to be deemed and-is an officer. He is required to give an official bond and to take the same oath of office as his principal, in which oath' his office is named.

In support of this view, see U. S. v. Hartwell, 6 Wall., 385; Bamford v. Melvin, 7 Maine, 5; Vaughn v. English, 8 Cal., 39; U. S. v. Tiklepaugh, 3 Blatchf., 425; Bradford v. Justices, 33 Geo., 336. See also, Revision, §§ 4284, 4288, 4289, 4290, 4293, 4297, 4298.

■ V. It is next argued (and this point was much elaborated in the oral argument,) that the first count in the indictment is insufficient in that it is too general. It charges that the-defendant did 6 unlawfully and ' feloniously loan, without-authority of law, the sum of two hundred and twenty-nine thousand six hundred and ninety dollars and forty cents ” of the public money of the State, which was in his charge for safe keeping, etc. The specific objections urged to this charge are that it does not state to whom the money was loaned, or' whether it was all loaned to one person or separate sums loaned to different persons, making in the aggregate the sum named in this count of the indictment. '

Our statute prescribes that an indictment must contain a statement of the facts constituting the offense, in ordinary'and' concise language, without repetition; and in such manner as to enable a person of common understanding to know what is intended.” Code, Sec. 4296, sub-division 2. “The indictment must be direct and certain as regards:

U ^

«2. * * # * .

■ “ 3. The particular circumstances of the offense charged,. when they are necessary to constitute a complete offense.”' Code, Sec. 4298.

*608 1L_. in_ .dictment. *607 It is generally sufficient to' charge an offense, created and *608 defined by statute, in tbe language of the statute. The State v. Shaw, 35 Iowa, 575, and cases cited. But -^hen a statute describes an offense by terms constituting rather a legal conclusion than a statement of the facts constituting it, the indictment must specifically describe the offense by a'statement of the facts. Thus, in Virginia, under a statute which constituted attempts to commit certain offenses misdemeanors, it was held not sufficient to allege an “ attempt to maim,” in the language of the statute; the particulars of the attempt were required to be set forth. Clark’s Case, 6 Grattan, 675. And in Commonwealth v. Gillespie, 7 Serg. & Rawle, 469, an indictment charging the defendant with selling lottery tickets in a lottery not authorized by law, was held bad because not sufficiently certain.

’ Under a statute in Pennsylvania declaring “fraud ” in election officers indictable, it was held necessary to allege the facts constituting the fraud. Commonwealth v. Miller, 2 Pa., 481. So, in The United States v. Almeida, in the District Court of the United States for Pennsylvania, cited in Wharton’s Precedents, note a to form 1061, under a statute declaring it an offense to “ make a revolt,” an indictment charging merely, in the language of the statute, that the defendant “ made a revolt,” was held bad, because it failed to charge the facts constituting the offense. The ingredients composing the offense should have been alleged, for this was necessary, also, in order to so distinguish and define the crime as that a conviction or acquittal could be pleaded in bar of a subsequent indictment for the same offense.

In The United States v. Ross, Morris R. (Iowa), 164, it was held, that an indictment for obtaining money under false pretenses must particularly set forth the false pretenses, in order that the defendant might be apprized of the accusation against him, so as to enable him to prepare his defense.

In The State v. McConkey, 20 Iowa, 534, it was held, that an indictment for willful trespass in cutting down and carrying away the timber of another, should allege the name of the owner of the land on which the trespass was committed. So, also, in The State v. Allen, 32 Iowa, 491, an information *609 against the defendant,charging him with “ selling intoxicating liquors in violation of the laws of the State of Iowa,” was held insufficient in not alleging the name of the person to whom the liquor was sold. It was there said that “ the offense can only be defined by charging the person accused with selling intoxicating liquors to another person. The person to' whom the liquor was sold 'should be named, if known, and, if not known, that fact should be. stated. This is necessary to' constitute the fact of selling and also'to enable the defendant, if convicted or acquitted, to plead such conviction or acquittal in bar of a subsequent prosecution for the same offense. In Massachusetts, where they have a statute declaring that a party who embezzles money or property shall be deemed, by-so doing, to have committed larceny, it is held not sufficient' to charge in the indictment that the defendant did embezzle, steal, take and carry away, etc., but'that the facts constituting the embezzlement must be charged. Commonwealth v. Simpson, 9 Met., 138; Same v. King, 9 Cush., 287.

These cases sustain the principle that the facts constituting a public offense must be charged in the indictment, and that* when a statute which creates an offense describes it in general terms .constituting a legal conclusion, the indictment must specifically describe the offense so as to bring it within the legal conclusion; and this, too, is the effect of the provisions of our Code, before cited.

12.-: —: «on. *610 13.-: embezzlement • indictment.' *609 The general language of the statute making it an indictable offense to “loan the public money without authority of law,” is more a statement of a legal conclusion than onei of facts constituting an'offense. The particular facts going to make up the offense, and bringing it within the legal conclusion of the words of the statute, are not stated in the indictment. To charge that the defendant loaned the pub-lie money in his charge for safe keeping, etc., without author-’ i'ty of law, fails to comply with, the provisions- of the Code above referred to. It is not a statement of the facts consti-. tuting the offense. It is not “ certain as to the particular facts or circumstances^of the charge” which are necessary to con-* stitute a .complete offense.’ To loan is to let a thing to *610 another, either gratuitously or for a reward. In order to constitute a loan there must be a thing loaned, in this case the public money, a lender and a borrower, as well as a contract between the parties. These .are the facts which are necessary to constitute a loan of the public money, and they should all be stated in the indictment. The name of the person to whom the money was loaned "is as essential to be stated as that of the person making the loan. To charge the defendant in general terms with loaning the money of the State, is jnst as much a legal conclusion as to charge a defendant with selling intoxicating liquor in violation of the statute; and ® J if, to constitute a good indictment or information for selling liquor, as was held in the State v. Allen, supra, it is necessary to charge the name of the person to-whom the sale was made, it must also be necessary, in order to constitute a good indictment for loaning the public money, to charge the name of the person to whom the loan was made. The cases are perfectly analagous; for, if to constitute an unlawful sale of liquor it requires the name of the seller, the liquor sold and the name of the person to whom sold, it must be necessary, in order to charge an unlawful loaning, to name the lender, the money loaned, and the name of the person to whom loaned. These several facts are necessary in either case to constitute the unlawful act intended to be charged as a public offense.

Again, if the mere loaning of any portion of the public money without authority of law, by the officer, although no loss occur to the State therefrom, be an offense within this section of the statute, then each loan made constituted a distinct offense; hence, it is'necessary to allege the name of the person or persons to whom the meney was loaned. For aught that is alleged in the first count of the indictment, the whole sum of money charged to have been unlawfully loaned may have been loaned to one person or to one hundred different persons. It merely alleges, in general language, the loaning of that amount of money unlawfully. Now if it were loaned to different persons, each loan would constitute a separate offense, and they could not be joined in the same indictment. Code, Sec. 4300. If the general charge of loaning, as stated *611 in the indictment, were sufficient, then this provision of the statute can be evaded by such general mode of alleging the loaning of the public money, although it may have been made in several distinct loans, and for that reason constitute several distinct offenses.. In order, therefore, to comply with the statute requiring an indictment to charge but one offense, and that the‘charge be direct and certain as to the particular circumstances necessary to constitute a complete offense, the name of each person to whom the public money was loaned, if known, should be allegedj for without this a “ complete offense ” is not charged.

“ The law,” in the language of Judge Hane, in The U. S. v. Almeida, supra, “ secures to every man who is brought to trial on a charge of crime, that the acts which constitute his alleged guilt shall be set forth with reasonable certainty in the indictment he is called upon to plead to. This is his personal right, indispensable to enable him to traverse the facts, if he believe them to be untruly charged; to deny their asserted legal bearing, if in his judgment they do not establish the crime imputed to him; or to admit at once the facts and the conclusion from them, if he be conscious of guilt. It is important to his protection also, in case he should be a second time charged for the same offense, that there should be no uncertainty as to that for which he was tried before. And besides all this, which may be supposed to regard the accused alone, it is necessary for the proper action and justification of the court, that it shall clearly appear from facts patent on the record, that a specific, legally defined crime has been committed, for which sentence is to be awarded'according to the laws that apply to it.”

14__._. :• YI. The second count of the indictment charges the defendant with converting the sum of five thousand dollars of the public money to his own use, without stating how or in what manner the money was converted. The statute provides, that “ if any officer within this State charged with the collection, safe-keeping, transfer, or disbursement of public money, unlawfully convert to his own use, in any way whatever,” etc., he shall be imprisoned, etc. What we have *612 said in the last paragraph of this opinion, in respect to the first count, will apply to this count also. To 'charge that defendant converted to his own use public money is charging a legal conclusion rather than a fact. The manner in which the money was converted should be alleged, so that the court may determine whether in legal contemplation there has been an unlawful conversion of the public money or not. To charge that one committed “murder,” or “robbery,” or “larceny,” would be bad. The facts constituting the crime must be stated. So to charge an “ unlawful conversion ” of the public moneys is bad, because it is not a statement of the facts composing the offense intended to be charged.

\ezñement^' .indictment.' YII. It is next urged that the indictment fails t'o charge the crime of embezzlement, for that it does not charge that any Pu^c money, with the safe-keeping of which the defendant was charged, has been lost to' the State or unaccounted for. It is insisted that in order to constitute' the crime intended to be charged, the public money must not only be unlawfully converted' or loaned, but that there must be a failure on the part of the officer to account therefor.' It is urged that sections 796, 797, 806, and 807, of the Revision, provide for the punishment of the officer in cases of the unlawful use of the public money where there is no loss .or failure to account, the offense being a misdemeanor under these sections; whereas, under section 4243, the crime of embezzlement there defined, being a felony, is not complete by a mere •unlawful use or loaning of the public money, where the entire .amount of the- funds aré accounted for, or paid over, which is what is meant by accounting for as here used. In order that the reader may better understand this point and our ruling upon it, we here copy the sections of the Revision above referred to, except section 4243, which has already been-'set ■out herein. " .

. “ Sec. 796, (86.) If the State Treasurer or County Treasurer discount auditor’s warrants at less than the amount due ■thereon, either directly or indirectly, or through third persons; -they shall be liable to a fine not exceeding one thousand dollars for the benefit of common schools, to be prosecuted as other *613 fines, and the payee of the warrant may be a witness on the trial.”

“797,(87.) County Treasurers shall be liable to a like fine for loaning out, or in any manner using for private purposes^ State or county funds in their hands, and the State Treasurer shall be liable to a fine of not more than ten thousand dollars for a like misdemeanor, to be prosecuted by the attorney general in the name of the State, for the benefit of common' schools.” ;

“ Sec. 806, (96.) The Treasurer of the State shall keep in the safe in his office all moneys received by him as such tre'asúrer, until the same are withdrawn therefrom on warrants issued by the Auditor of State in accordance with law. The treasurer shall not deposit any of the moneys received by him as treasurer with, or lend any portion thereof to any person or persons, or association of persons whatever, or to any company incorporated or unincorporated, nor shall he in any manner whatever' allow said moneys, or any part thereof, to be withdrawn from said safe or used in any manner whatever, otherwise than may be provided by law.”

“ 807, (97.) Should the Treasurer of State at any time violate any of the provisions of section ninety-six of this act,”, (the last section,) “he shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not less than five thousand dollars, nor more than twenty thousand dollars, and imprisoned in the county jail not less than one year nór more than five years, or both at the discretion of the court.”

• Section 4243, under which the indictment is drawn, was enacted in 1851, and was section 2618 of the Code of that year; the other four sections above set out were first enacted in 1860, and are a part of chapter 164 of the laws of that year, which chapter expressly repeals all acts or parts of acts in conflict with it.

It will be observed that' these sections taken from the laws of 1860 declare the acts of taking, depositing, using or loaning the public moneys to be a misdemeanor, jmnishable by fine and imprisonment in the .county jail, while the same acts ai’e, *614 by section 4243, declared to be embezzlement, and punishable by a different fine, and by imprisonment in the penitentiary. If these provisions of the statute do not define different offenses, and the law of 1860 was last enacted, tlie rule is well settled that the new statute which provides a milder punishment, repeals so much of the former law as concerns the punishment, and this, without any express repeal. ■ And further than this, where one statute prescribes different degrees of punishment, in different sections, only the milder degree can be adjudged. Bishop on Stat. Crimes, section 168, and the numerous cases cited in the notes. ITence, if all the sections herein quoted shall be regarded as a part of the same statute, enacted at the same time by their adoption into the Revision of 1860, then the milder penalty of fine and imprisonment in the county jail would operate as a repeal of the punishment prescribed in section 4243. If the several sections are all read precisely as they are printed in the Revision, the conclusion is inevitable that they define substantially one and the same offense, and a repeal by implication would follow. But the rule that repeals by implication are not favored, and that any reasonable or allowable construction will be adopted to avoid such result, has been frequently announced by this court. See Casey v. Harmand, County Judge, 5 Iowa, 1; Robertson v. Young, 10 Id., 291; Thatcher v. Haun, 12 Id., 303; Baker & Griffith v. The Steamboat Milwaukee, 14 Id., 214; Allen v. Pegram, 16 Id., 163; Burke v. Jeffries, 20 Id., 145; City of Dubuque v. Harrison, 34 Id., 163; Morrison v. Hershire, 32 Id., 271; Prisdon v. Shank, 37 Id., 82.

By recurring to the language of section 4243, it will be seen that, by changing the word “ or ”‘ preceding the word “ unaccounted for” to the word “and,” the.nature and consequences of the offense are entirely changed, and the reason for making such an offense a felony, punishable in the penitentiary, while the offense defined in the other sections is only a misdemeanor, becomes very apparent, namely: the offense specified by the four sections is a mere technical violation of the statute without injury or loss to any one, and the only consequence of such violation is the liability to pay the penalty prescribed; this is *615 the full measure of liability therefor, which may be more or less than the amount of money used or loaned; while the offense punishable under section 4243, when the word “ and ” is substituted for the word “ or,” results in a loss or injury to the tax-payers of the county or State to the extent of the money unlawfully used or loaned and “ unaccounted for;” and for this greater wrong of depriving the county or State of a portion of its funds, and as a stimulus to the officer to account for the money, the severer punishment of imprisonment in the penitentiary, and a fine equal to the amount of money unaccounted for is prescribed. By thus construing or ” to mean “«red?,” we avoid a repeal by implication of the punishment clause in section 4243, we make the several sections harmonious and consistent, and the punishment graduated according to the heinousness and deleterious consequences to the public of the offense committed.

The only question remaining in this connection is, whether we have any authority in law for construing a disjunctive conjunction as a conjunctive, and vies versa. That courts have interpreted the word “and” as a disjunctive; and the word “or” as a conjunctive when the sense absolutely required, and this in extreme cases in criminal statutes, against the accusedj is laid down as elemental. Bishop on Statutory Crimes, p. 243, and cases cited in notes 1 and 2; see, also, The Estate of Hallowell in Supreme Court of Penn., April 3, 1875, and found in Legal Int., Phil., of April 9, Vol. 22, No‘. 15; and this court in The State v. Meyers, 10 Iowa, 448, construed the word “or” to mean “and,” and this too when such construction operated against the accused. See also, to the same effect, The State v. Cooster, 10 Iowa, 453.

The fact that the sections quoted from the law of 1860 only name the county and State treasurer does not affect this construction. For, if this construction has to be resorted to for the purpose of avoiding a repeal by implication or to make the different jirovisions of the statute consistent with each other, and maintain them entire as respects the office of the State Treasurer, the same construction would have to obtain as respects every other officer, since all the laws must be uniform, and *616 whatever would be a correct construction for one officer must be ¡correct for all; for it cannot be held that the acts which, when committed by the State Treasurer, amount to a misdemeanor; would be a felony if committed by his deputy. But the words “ State Treasurer,” may well be held to include any and every ■person discharging his duties as such. The law embraces an "officer de faeto as well as one de jure. It follows, therefore, •that since the indictment does not charge that the money of the State, which was used or loaned by the defendant, was unaccounted for, it does not charge the crime of embezzlement, under section 4243 of the Eevision, and for this reason .'also, the demurrer should have been sustained.

Beveesed.

Cole, J., concurs in the foregoing opinion.