Omaha daily bee., 1897-06-09
MOORE MUST STAND TRIAL
His Attempt to Evade the Law Proves
Entirely Futile,
ORDERED TO BE ARRAlGNED SATURDAY
Judge Hall Sustnins Motion TO Quosh
Sis Counts OF Indictment Against
Ex-Stntc Auditor and Holds
others Are Good.
ORDERED TO BE ARRAleNED SATUaDA'


Judge Hall this morning rendered his de-
csion in the Eugene Moore case, the argu-
ment in which was heard by him last Sat
urday. The motion Of Moores attorneys to
quash in six of the counts was sustained,
but the demurrer to the three counts which
charge Moore with the embezzlement of SILL
72S.S5 during his first term of office and
S27, ,2OS O5 during the two terms, and finally
with the $2S, ,2Os.05 which yet remains un-
paid was overruled and Moore will be ar
raiguod on these three counts. Time will be
given for Moores bondsmen to be notified
and reach here, and the arraignment will be
made on Saturday, or the first of next week,
at which time he will be required to give
new bond.
The decision in effect holds good the mo-
tion to quash the counts wherein Moore
is charged with stealing the state money,
and with embezzling the money belonging
to the state and in his possession as a person
charged with their collection, receipt, trans
fer safe keeping and disbursement, and
overrules the demurrer to the three counts
charging him with embeZzing moneys be-
longing to the state of Nebraska, and in his
hands by virtue of his Office as auditor OF
public accounts.
In sustaining the motion to quash, Judge
Hall defines the crime of larceny, and holds
the third and sixth counts in the indictment
as defective because they fail to allege from
what officer of the state the defendant
feloniously took and carried away the
moneys charged to have been stolen by him.
The second, fifth, seventh and eighth counts
are declared defective in failing to allege
facts whereby the court upon reference to
the statutes may be informed that the de-
fendant at the time complained OF was
person charged by law with the collecting, or
receiving or safely keeping, or TRANSFERRING
or disbursing public money belonging to
the state.
WHY THEY WERE TURNED DOWN.
In overruline the demurrer as to the
first fourth and ninth counts, the judge
says:
DO the first fourth and ninth counts state
facts sufficient to constitute yne crime of en-
bezzlement of an officer? The demurrer to
these counts admits or the apgumittat OF nd 1e
facts, to wit:
j. That at the time complained of in said
counts the defendant was an officer, to-wit:
the auditor of public accounts of the state
of Nebraska.
2. That among the statutory duties of that
officer is the licensing of insurance compan-
les to do business in this state; and to furnish
copies of documents on file in his office 10
parties desiring them.
3. That the parties requesting the auditor
les, are by the statutes required to pay. fees
therefor in amounts fixed by the statutes.
aGires that t"S ali fees payabe BY law for serv
ices performed by the auditor of public ac-
counts shall be paid in advance into the state
5. That the defendant while he was said
officer collected and received into his posses
sion fees for sucd services performed by him
as such officer to the amount of $272OS.O5:
6. That the defendant did not pay such fees
formance of the services for which he re-
ceived said fees, nor at any time thereafter
7. That the defendant as such officer per-
formed the services for which said fees were
collected and received by him
s, That the defendant converted said fees
and moneys to his own use and to the use OF
others while he was such auditor of pubic
accounts.
STATUTES GOVERNING FEES.
The different statutes on the subject of
fees, enacted by the carrier legislatures, were
referred to by the judge, and especially the
act of 1873 regulating insurance companies
and stating the amount OF fees the companies
should pay to the state auditor for filing
articles and for insurance certificates. The
opinion continues thus
All territorial laws remained In force by by
express provision of the constitution of 1866
until amended or repealed by the leslsla-
ture. While this constitution was in force
the said act of February %, 1913, was en-
acted giving the auditor more fees to his
own use. But the constitution of 1875 sec
ton "a, article V, eXprt6Ely prohibited the
auditor and all other state officers
from receiving fees to their own use, after
the, adoption of the said constitution; put put
fees that may hereafter be payable for
services performed by an officer provided
for by this article of the constitution shall
be paid in advance into the state treas
ury."
then among the statutes. Only, those mot
inconsistent herewith" remained valid after
its adoption; This s inhipition NJ appiibed pbo to to
fees by prior laws required to be paid for
services rendered by the auditor remained
valid, and payable, those fees after the
constitution went into effect, were payable
no longer to the auditor for his own use, but
no o the Whe Il adyaee k tr for e aes hs
not follow that there is no warrant of law
for the auditor to collect fees in the first
instance. The constitution Is silent as to
who shall pay into the state treasury in ad-
vance the fees for services in the auditors
AT the time the constitution of 1875 was
framed and adopted, all of the above cited
statutes were in force, and Hereunder all
was not the intention of the constitution to
abrogate payment of fees for such services
Of the auditor. 1t was not the intention of
lect and receive said fees in the first in
stance. The constitution recognized the fact
that these statutes touching fees in the
office of the auditor were in force. 1t said,
"let the laws reSlain; only hereafter the
fees shall go to the state. not to the aud
itur' 1t Is the official duty of the auditor
Of public accounts under the constitution to
require and see hat the fees fixed by the
statute for any statutory service requested
be paid into the state treasury before he
performs the service He may perform this
official duty In either of two ways. "a BY
requiring the party asking the license 10 do
insurance business, or a copy of any docu-
ment on file in his Office to pay the fee there
fer in advance into the state treasury, and
bring him the receipt: or, ~ by collecting
and receiving such fees himself as auditor in
advance. whereupon IL becomes unaer the
common law his Official duty to keep such
fees safely and under the constitution 10
transfer them into the state treasury in
advance OF the performance of the service
by him. Hence II is that the constitution
IL silent as to who shall pay such fees in
advance into the STATE treasury.
Hence il Is that section n of said article
of the constitution requires the auditor
of public accounts TO keep an account of all
moneys received bs him from al sources,
and for every service performed and TO
make under oath a semi-annual report
thereof to the governor.
1t therefore follows that the moneys men
tened in the first, fourth and ninth counts
of the information lawfully came into the
possession Of the defendant in the perform
ance Of his official duties; that said moneys
belonged TO the state of Nebraska whose
officer he was; ana that having converted
said money TO his own use and to the use
of others the said first. fourth and ninth
counts Of the Information contain allega-
lions sufficient 10 charge upon the defendant
the crime Of enlightenment under section l2I
OF the Criminal Code.
GOSSIP FROM THE STATE HOUSE.
On account Of his rheumatism Governor
to