People v. Doss

Rhodes, C. J., delivered the opinion of the Court, Wallace, J., Temple, J., and Crockett, J., concurring:

The indictment was found under Section 66, of the Act concerning crimes and punishments, which defines and provides for the punishment of embezzlement by officers, servants, etc. It is alleged that the defendant was the County Superintendent of Common Schools of Kern County, and that, while acting as such officer, he unlawfully and feloniously converted to his own use, and embezzled certain money belonging to the school fund of said county. The point of the demurrer is, that, at the time of the commission of the alleged offense, there was no such office known to the law as County Superintendent of Common Schools. Previous to the passage of the Act of April 6, 1863 (Stats. 1863, p. 194), the officers having charge of the common schools, and the school funds of the several counties, were denominated “County Superintendents of Common Schools;” but by the [430]Act of 1864, the common schools are called “public schools,” and the Superintendents are called ‘ County Superintendents of Public Schools.” The Legislature, in order to obviate any inconvenience that might result from the change of the names of the system of schools, and the officers having charge thereof, provided, by Section 71 of that Act, that the words “public school” or “public schools,” as used in this Act, shall be understood as having the same meaning, in all respects, as the words “common school” or “common schools, ” heretofore used in the school laws of this State. The words “common schools” and “public schools” being synonymous, the office held by the defendant was sufficiently designated by the term “ County Superintendent of Common Schools of Kern County.

Judgment reversed, and cause remanded, with directions •to overrule the demurrer.

Sprague, J., delivered the following dissenting opinion:

In my judgment, this Court has no jurisdiction of this appeal. The official character of the defendant, and the acts constituting the offense as charged in the indictment, most clearly demonstrate that the offense charged does not fall within the provisions of the sixty-sixth section of the Act concerning crimes and punishments, and as clearly demonstrate that the offense intended to be charged is embraced in the sixty-seventh section of the same Act; and as the amount of money alleged to have been embezzled by defendant is less than one hundred dollars, to wit: thirteen dollars and seventy-five cents, the offense is within the proviso of this sixty-seventh section; hence, is not a felony, but a misdemeanor, of which this Court has no appellate jurisdiction.