Evening journal., 1901-12-23

false and fraudulent; for work and labor
which he knew had never been rendered; |
then such false pretense would constitute
an intent to cheat and defraud said Hor-
ace G.. Rettew. Receiver of Taxes and
County Treasurer, and would sustain the
indictySent upon this point Such intent
is not presumed in law, but must be
proved, and is a question for you TO de-
termine in the transaction as shown by
the evidence
Again: if you should be satisfied from
the evidence that the defendant made
such false pretense with such intent to
cheat and defraud as above defined, then
your next step will be TO ascertain
whether he did by such false pretense.
actually obtain the money of Horace G..
Rettew, Receiver of Taxes and County
Treasurer aforesaid.
1t is upon this point of the case, that
the most serious controversy has arisen,
and earnest and ala arguments have
been made both by the Attorney General
and by counsel for the defendant
The defendant insists: Q) that the
money was not obtained from Horace G..
Rettew. Receiver of Taxes and County
Treasurer. but from the Farmers Bank
at Wilmington. That the county fund
being deposited under the statute in the
bank to the credit of the County Treas
urer. and mixed with the general funds
Of the bank, it became the money of the
bank, and thereby Rettew lost possession
and control of that money.
~ That as the money was deposited in
the bank by Horace G.. Rettew, County
/ Treasurer. it could in nOwise be the
money of Horace G.. Rettew, Receiver of
Taxes and County Treasurer: the Re
ceiver of Taxes and County Treasurer
being two distinct officers.
CD Generally. that Horace G.. Rettew.
| Receiver of Taxes and County Treas
urcr. had no such property in or pos
session or control of the money as TO war
rant the laying it i'm the Indictment as his
property.
The state controverts all these PROPOSE
tions.
This contention involves the construc-
tion Of Chapter 20, Vol. 10, Delaware
Laws, passed at Dover April 2S, 1891
I Code, 49, etc.), as to the Office and pow
ers of the Receiver of Taxes and County
Treasurer.
We have carefully examined this
statute, and without setting out in detail
the different clauses bearing upon these
points, now state the following concu-
sions asselearly growing out of the terms
Of the statute:
l. That the words Receiver of Taxes
and County Treasurer do not describe
d two distinct officers; but constitute the
q proper legal title of the person occupying
one Office who is properly described in
the Indictment as the Receiver of Taxes
and County Treasurer" constituting one
e Office. one officer, with varied duties un
der the statute
2. That under the statute, such Officer
is not only the Receiver of Taxes Will
! authority TO receive and deposit money,
: arising from taxes etc, In the Farmer,
] Bank at Wilmington TO his credit a.
( County Treasurer; but that he is also tn,
I disbursing officer of such funds whicl
can only be drawn and obtained undei
the law by warrants drawn upon him az
: such Receiver sf Taxes and County
i Treasurer made, signed and counter
a signed as required by law.
g. That under the law therefore, tina
as such disbursing officer, he has sucl
i control and possession of the count
u funds and such property therein as t.
sustain the indictment, laying the prop
, erty in the question in him as Receive
d of Taxes and County Treasurer.
y With respect to his control and pos
session of, and property in the count
70 funds aforesaid, you are to be gOverne
9 by the law as we are now interpreting
= to you; inasmuch as the extent Of hi
: possession and control in such count
/ funds is a matter of law under the stat
+ ute, as interpreted by the court and car
e not be determined by the opinion of tn
& said Horace G. Rettew whatsoever tha
L opinion may be. We say TO you, that tn
o possession and control of the money an
Il the property therein, was properly laid
20 such Receiver of Taxes and Count
,t Treasurer in the indictment.
i 1t is unquestionably true, as elaine
'e by the defendant, that generally wheI
ie money is deposited in bank, and mike
le with the funds of the bank. it becOm,
p the money of the bank. Nevertheless
II when the county funds aforesaid hay
been deposited in the Farmers Bank 4
le Wilmington as prescribed by law, an
II when a specific sum is separated and a.
v propriated by said bank or its agent f,
Is the payment of any such warrant to Il
e holder thereof, in accordance with Il
IN direction or authority of the Receiver
Ne upon becomes and is paid out, in Co
s. temptation of said statute, as the mon'
n and property of the Receiver of Tax
H. and County Treasurer.
lis We are asked by the defendant to /
n struct you, THAT as the offense charg'
is in the Indictment is a purely statuto
ed one, unknown to the common law, Il
e. statute must be construed strictly bo
re in its words and spirit"
re In Mccoy VS.. State, 9 Houst., 4
Inn Quoting Commonwealth vs.. Loring.
as Pick, 3T0, the court says; 1T is true
'o- is so laid down as general rule; a.
OF the reason is that the court shall not
allowed to make that an oifense whi
4 was not so by legislative enactment. b
he the rule does not exclude the applcati
Of common sense TO the terms made u
of in the act"
on Criminal statutes must be strictly
ed terpreted. but courts must search for I
ich viii of the Legislature, and the rule
1se not violated in giving to words their f
ler and proper meaning"
ud State VS.. Thatcher. 6 Vroom 445; st,
in vs. Crowley. 80 y. j. Law, 264