People v. Otto

Foote, C. The defendant was indicted under section 424 of the Penal Code, which reads as follows:—

“ Each officer of this state, or of any county, city, town, or district of this state, and every other person charged with the receipt, safe-keeping, transfer, or disbursement of public moneys, who either,—

“10. Willfully omits or refuses to pay over to any officer or person authorized by law to receive the same any money received by him under any duty imposed by law so to pay over the same is punishable by imprisonment in the state prison for not less than one nor more than ten years, and is disqualified from holding any office in this state.”

The indictment was demurred to, the demurrer sustained, and from the judgment made in the premises the people have appealed.

The grounds alleged in the demurrer why it should be sustained were: 1. That the indictment did not substantially comply with the requirements of sections 950, 951, and 952 of the Penal Code; 2. That more than one offense is charged in the indictment; 3. That the facts do not constitute- a public offense.

The indictment set out that the defendant, “ during all the times between the first Monday of January, [525]A. D. 1883, at 12 o’clock, m., and the first Monday, viz., the fifth day, of January, A. D. 1885, at 12 o’clock, m., was the duly elected and qualified sheriff and ex officio tax collector of the county of Del Norte and state of California”; that as such it was his duty to receive, safely keep, disburse, transfer, etc., the state and county taxes for the fiscal year ending June 30,1885; that as such tax collector, on the fifth day of January, 1885, he “had” received and collected a certain amount of money, state and county taxes, the sums belonging to the state and county being stated in the aggregate first, then separately.

That on the first Monday, viz., the fifth day, of January, 1885, and for five days thereafter, at the county and state aforesaid, “the said W. H. Otto, as said tax collector, wholly and willfully omitted and refused to pay over to the county treasurer of said county of Del Norte, the officer authorized by law to receive the same,” the sum of money, etc.; and that on the fifth day of January, 1885, etc., “he wholly and willfully omitted and refused, and still does omit and refuse, to pay over ” said money, etc.