Omaha daily bee., 1897-11-30
CERTAIN WHAT SENTENCE TO PASS
SUSPtNDS JUDGMENT TILL THIS MORNING
Moore Remnnded TO the Custody of the
sheriff While His Attorneys Pre-
pare Appeal TO supreme
Court.

LINCOLN, Nov. 2s.-(speciol) District
Judge Cornish this afternoon ruled against
the motion in arrest OF Judgment filed by
the attorneys for Eugene Moore. the ex-
auditor of state who pleaded guilty TO TAX
! Ing S2S,OO0 worth OF insurance fees but who
contended that in doing SO he had violated
no statute Of the state. The motion had
brought into question the ownership of the
money, the attorneys FOR Moore contending
that It was not the property of the state.
Court convened al O'Clock. Attorney Gen.
eral Smyth and County Attorney Munger
were in attendance. and Moore who was &c
companied by his wife. was also nanked by
his attorneys, Judge Barnes and Willis Reed.
Judge Cornish said that he had given the
matter as much time as he could and re
GREETED that he could not have given II
more thorough examination He then over
ruled the motion and said that he had writ
ten down his reasons, which he would not
read at that time unless it was requested by
the attorneys.
Judge Barnes asked that the exceptions Of
the attorneys for the defense might be noted
on the record, and then asked that the court
suspend the sentence until tomorrow morning
at clock, by which time tine record could
be completed and a supersedeas bond be
presented TO the supreme coifrt as the case
would be taken there for review. County
| Attorney Munger objected to this, unless in
the meantime Moore be paced in the Gus
| tody Of the sheriff He did not believe the
! old bond would be good after the motion
was overruled and wanted the state to be
on the safe side. Judge Barnes differed with
him as to the bond being good and said it
was unnecessary for MIR. Moore to be taken in
charge by the sheriff. There was no need
! or such a move, the prisoner was not
going to run away.
REMANDs MOORE TO CUSTODY.
| Judge Cornish said he would grant the
| application for a suspension OF the sentence
until tomorrow morning at 3 O'Clock but
! that in the meantime Moore should be placed
in the custody of the sheriff There was
some doubt as to whether the old bond would
now hold good and heretofore Moore had
| been given much time and many privileges
The judge said that ne had heard no evidence
and scarcely knew what sentence to innict,
/ and asked the attorneys for the defense IL
they would like to be heard on the matter.
Mr.. Reed said he did not believe they would
have anything further 10 say, only he would
| like to give notice now of the application
| for a new trial, and would prepare the papers
| for this application during the afternoon.
| Mr.. Munger said he would object to this, as
ii too late TO move for new
! trial. The matter then went over until to-
morrow morning, and in the meantime
Moore was taken in charge by Deputy Sheriff
| Hess being, however, to all intents and
purposes, allowed his full liberty
The court handed in the following as his
! reasons for the ruling
Section 124 of the Criminal Code, for the
| violation OF which defendant is guilty,
| reads follows:
'If any officer or other person charged
with the collection, receipt. safe keeping,
| transfer or disbursement of the public
! money or any part thereof b. longing to
| the state, shall convert to his use to
| the use of any other in any
! other way whatever any portion
| Of The public money, received, con-
| troled or held by him for safe keeping.
| transfer or disbursement, or in any other
| way or manner, or for any other purpose;
| every such act shall be deemed and held
in law 10 be an embezzlement
| Erabezzlement, il is said is an offense
| created by statute. il has d history
| Many guilty person charged with en-
| bsZzlemeut has escaped punishment be-
| cause his particular offense was not de-
Ircribed by law, and many amendments to
the statute have been enacted 10 cover
new clusses of cases as they have arisen.
| W mai IS lht HithLlhE Of lhe move
| quoted words? To the ordinary reader II
would seem that in them the Legislative
mind was taxing its ingenuity 70 find
words to cover all possible cases OF one
who, being in the possession Of the public's
money, clothed with any sort Of trust.
! shall be guilty of converting the same TO
| his own use All words Of limitation are
| omitted All words OF expansion are in
| cuded
DEFINITION OF THE TERMS.
| IT is urged that the defendant herein is
| informed against officer, and that
much depends upon the meaning Of the
| word charged" In the statute; that 4
means as If II said "caarEed by virtue OF
| his office" and hence that unless some
| constitutional requirement or statutory
! enactment can be pointed out making him
the proper collector or recipient OF this
| money, he is not amCnable 10 this statute.
| ! do not believe so.
At common law the finder of lost goods.
| II ne knew whose they We're, was charged
with the safe keeping and transfer" TO the
owner without any statute and guilty OF
| larceny If he did not. The statute fol-
| lowing older laws might have said
| Charged by virtue of his office" or have
changed II 10 FOR or in the name or ON
account Of" but II did moi. ] see no good
reason for not giving TO the word
Charged" its ordinary and common law
meaning The mere possession Of thing
creates charge and duties respecting it.
! one Is officially charged in the brOadest
sense whenever good conduct of officer
requires him 10 do q thing; on the other
hand there Is sense In which no wrong
act of an officer is official For instance,
II one believing that certain officer is
\ empoW 10 receive a certain fund 50
approaches him for that purpose when In
fact he is not the proper officer TO receive
H. then the officer may pursue one OF two
] H. ma paTrt fr.
uelVe II. so informing the person, or II
already in his hands. he may refuse 10 re-
tain IL. 80 notifying the person. or IL being
SO treated as an officer he does retain II.
then IL at once becomes his official duty
| 10 see that the fund hnds its proper place.