#### W. D. Howze *v.*The State.

Criminal Law — Technical Violation of a Statute.

In the prosecution for a misdemeanor, although the evidence acquits the defendant of moral wrong or corrupt intent, if it shows a technical violation of a statute a conviction will be sustained.1

Appellant, Howze, was treasurer of De Soto county, his term expiring January 1, 1(880. He turned over all the books and records of his office to his successor except a small account-book which he bought and paid for himself which contained various memoranda of accounts with the county and reports made by him as treasurer. The evidence showed that everything contained in this book was of record in the chancery clerk’s office; that appellant regarded this book as his private property and not the property of the county. This book was demanded of him and he refused to give it up to his successor. He was indicted for failing to turn over the records of his office to his successor and convicted. The court gave the following instruction for the State, to which defendant excepted.

*521“ If the defendant intentionally retained the records of his office from his successor in office before or after a legal demand was made upon him for them he is guilty as charged and the jury should so find.”

Defendant was sentenced to paya fine of $25 and costs and appeals.

*Affirmed.*

Appealed from Circuit Court, De Soto county, A. T. Roane, Judge.

Affirmed,

March *17,*1884.

*Attorneys for appellant, Fitzgerald & Whitfield.*

*Attorney for*State, *T. 0. Oatchings, Attorney-General.*

Brief for appellant:

The error, as we think, in the judgment of the court below, and upon which we rely for a reversal, was the instruction of the court below at the request of the State, to-wit: *“*If the defendant intentionally retained the records of his office from his successor in office before or after a legal demand was made upon him for them he is guilty as charged and the jury should so find.”

This was the only instruction given by the court in the last trial. No other was asked on either side.

This instruction was wrong and calculated to mislead the jury. If intentionally means willfully, in contemplation of the statute the instruction is correct; otherwise it is not correct. The jury understood by the instructions that if the defendant intended to retain the book, no matter what induced him to do so, he was guilty as charged. That was the only construction they could give it. It was equivalent to instructing them to find a verdict of guilty. If the defendant refused to give up the book, he of course intentionally retained it, and yet this court, when the ease was here before, makes a distinction between a mere refusal and a willful refusal. This fact was urged upon the consideration of the court below, but without avail. 59 Miss. 233. By the ruling of the court the jury were given distinctly to understand that the words *“*intentionally ” and “ willfully ” are synonymous for the purposes of this case. It *522is undoubtedly true tbat if tbe defendant intentionally retained from his successor what be regarded as tbe records of tbe office be was guilty. But tbe proof abundantly shows that tbe defendant did not regard tbe book as appertaining to tbe office of treasurer. He did not so receive it from bis predecessor. He received it as tbe private memorandum-book of bis predecessor. His predecessor certainly did not regard it as a book required by law, otherwise be would bave charged the county with tbe money be paid for it. He received it as a gift from bis predecessor and kept and regarded it as *he*bad done, as a private memorandum-book. Had there been any entry relating to bis office in tbe book which be could bave bad reason to conceal tbat fact might bave outweighed everything said by defendant, but when it is considered tbat every entry relating to bis office bad been reported to tbe board of supervisors; tbat bis reports bad been recorded and tbe reports duly filed in tbe chancery clerk’s office, tbe idea of a willful detention of tbe book is completely exploded.

-x- -x- -x- j-f defendant regarded tbe book as a record of bis office, bis intention to retain it would bave been willful without doubt, but regarding it as bis individual property excludes tbe idea of bis regarding it as a record of tbe office and, therefore, relieves him of tbe imputation of willfully refusing to do bis duty or of intentionally retaining tbe records of bis office from bis successor in office. * * *

Tbe indictment is under tbe Oode of 1880, § 2788, which makes tbe offense charged a felony or a misdemeanor at tbe discretion of tbe court. Tbe indictment charged tbat a felony was committed and tbe verdict of tbe jury is “ guilty as charged.” Tbe judgment of the court is, “ tbat tbe defendant be fined tbe sum of $25.” This court, when tbe case was before them at October term, 1881, say: “ Tbe indictment charges tbat tbe term of office of tbe defendant expired on tbe first Monday of January, 1880, and for this reason be could not be convicted of any offense created by tbe Oode of 1880,” etc., and yet as far as can be ascertained from tbe record, he was convicted of an offense created by tbe Code of 1880. Tbe court further say, “ but tbe indictment also included an offense under Code 1871, §§ 262, 2890.” Hnder tbe Oode of 1871, tbe offense was a misdemeanor. It is manifest from tbe indictment tbat tbe grand jury indicted defendant under tbe Code of 1880, and not under Oode of 1871. Tbe record of tbe proceedings shows that defendant was convicted under tbe Cbde of 1880.

*523Brief for appellee:

If the book retained was a part of the records of the office, the fact that defendant may not have thought it was is no defense. It was his business to turn over the records to his successor, and he will not be heard to say that he did not know what the records were.

Moreover the word “intentionally” was manifestly used as synonymous with “ willfully.”

The question as to which Oode the indictment was found under was settled when this case was here before.

1

Where an act, without reference to the intent, is made punishable the law will presume the intent from the doing of the act, and it is no defense that the accused acted in good faith, not intending a wrongful act. Knight *v.*State, 64 Miss. 802, 2 So. 252; King *v.*State, 66 Miss. 502, 6 So. 188.

Under this rule the good faith or honest belief of one indicted under section 2980, Code 1880, for going upon the enclosed land of another, after being notified not to do so, is held to be no defense. Knight *v.*State, 64 Miss. 802, 2 So. 252.

And so of a sale of a beverage that is intoxicating. King *v.*State, 66 Miss. 502, 6 So. 188.

And this is true of the statutory offense of carrying a concealed weapon. Strahan *v.*State, 68 Miss. 347, 8 So. 844.

Per Curiam :

The appellant was convicted nominally of a felony but actually of a misdemeanor, for it is only by virtue of the law in force prior to the Oode of 1880, and continued by it, that the indictment was sustained, and by that law the offense was a misdemeanor.

The evidence acquits the appellant of any moral wrong or corrupt intent. Ilis withholding the book was a technical offense, as he should have delivered it to his successor, and intentionally and deliberately refused to do it.. There was no error in the instructions of the court to the jury.

Judgment *affirmed.*