Mineral Point tribune. (Mineral Point, Wis.) 1869-1938, 1893-01-14
VIC
CONTINUED FROM THIRD PAc E.

tody or possession Of the money or prop
erty Of another, loans or deposits il for
his own gain. profit or advantage, with
out special authority. prohibits the state
treasurer from mixing the deposits In
question, inasmuch as he made them
with the intention Of converting to his
own use (and afterwards did sol any in
terest the banks should thereafter pay
him on such deposits. The question is,
therefore, were the deposits in question
made for the gain, profit or advantage
Of Treasurer McFetridgc, within the
true intent and meaning Of that pro
vision? We are OF the opinion that this
question must be answered in the neg
atiye 70 subject a public officer TO the
serious penalties Of the statute there
must be something in the character and
incidents Of the deposits TO show that he
has disregarded the obligations Of his
trust Ia making the same or it cannot
Justly be said that he deposited the
money for his own gain, profit or adj
vantage. So long as his actions are
within the line Of his duty he is not an
embezzlpr, although he may intend at
some future time unlawfuly 20 apprO-
pirate to his own use the trust funds, or
some portion thereof, or the interest
realized thereon. The deposits under
consideration assuming that there was
no other legal objection 10 the making
thereof were regularly made by the
treasurer i'm his official capacity as such
for the benefit Of the state, and could
only be drawn on his official draft The
authority TO contract for interest on
such deposits Is as broad as the right to
make them, for the statutes contain no
special restriction In the matter of such
interest True, there was question
between the treasurer and the state as
20 which Of them was entitled 10 the
interest The treasurer claimed 1t and
intended, If It came TO his hands TO
keep It. Having done so. perhaps he
committed an offense against the stat
ute. But when he made such deposits
he did no overt net tending thereto The
inciplcnt offense Or he afterwards com
mlttrd ~ rested entirely In intention,
liable ut any time to be abandoned No
person can lawfully be convicted Of an
oifense merely because he intended 10
commit It but did nothing in execution
Of such intention. The deposits having
been made for the benefit of the state,
by the treasurer In his official capacity,
In due course of business with the in
tention, afterwards executed, to pay the
amounts thereof to the persons lawfully
entitled thereto, the intention formed in
his mind to rgain 60 his own
use amy interest the banks
might thereafter pap him on
account of such deposits, Is not sufficient
90 characterize the act Of making such
deposits as conversion TO his own use
OF the funds thus deposited, and an en-
bczllcmcut thereof Let MS Illustrate
Suppose the next day after the treas.
ureT had made one of these deposits
I'm some bank hc was prosecuted for
cmbr2zlcmcnt under Sec. 4il9 Con
cedc that he stipulated for interest on
such deposit, and intended, after such
interest accrued and WIS paid to him to
keep &c ms Ids own still he made the
deposit as treasurer, for the benefit of
the state, and for The purpose Of paying
the amount thereof To- the creditors of
the state ON proper warrants Ih'
prosecution wculd necessarily fail. Cor
he emhrzzled nothing. and the fund he
intended to rrta.. miawfully had never
been i'm his hluds. i'm rart. had not ac-
crIrd when the deposit was made. lie
did mo- nct to evidence an intention TO
enlhczzla such interest. and there is
nothing 10 support the prosecution but
mrr, mental process or intention en-
tiroly uucxccutcd. This is not sufficient
Had the treasurer made such deposits
I'm his individual name, and ii could bc
proved that he did SO for the purpose
Of enabling him 10 cmbo2zlc the money
deposited or portion of It. IL might
well be said that he thereby committed
an ortcnsc under Sec 4u9 but we can
not understand how this can truly be
said OF official deposits i'm regular and
proper form, II otherwise lawfully made.
We conclude therefore, that Treasurer