Fortenberry v. State

Mississippi Supreme Court January 15, 1879

Fortenberry v. State, 56 Miss. 286 (Miss. 1879)

Campbell

Opinion of the Court

Campbell, J.,

delivered the opinion of the court.

The fact that Fortenberry held the office made him liable to punishment for embezzlement. His failure to take the oath of office did not exempt him from liability for official miscon*287duct. 1 Bishop’s Cr. Law, sect. 464; 3 Greenl. on Ev., sect. 483; 2 Archb. Cr. Pr. & Pl. 463, top p. 1363; The State v. Sellers, 7 Rich. 368; The State v. Mayberry, 3 Strobh. 144; The State v. McEntyre, 3 Ired. 171; Diggs v. The State, 49 Ala. 311; Rex v. Barrett, 6 Car. & P. 124; Rex v. Gardner, 2 Camp. N. P. 513.

Judgment affirmed.

Reference

Full Case Name: M. M. Fortenberry v. State
Cited By: 1 case
Status: Published
Syllabus: Criminal Law. Embezzlement in office. Official character, how established. One who has been duly elected to an office, and assumed the functions thereof, cannot defend against the charge of embezzlement in office on the ground that, having failed to take the oath of office prescribed by law, he was a mere usurper, and not an officer de jure. The fact of holding the office fixed his liability to punishment for embezzlement.