On Monday night, the eleventh day of May, in the thirty-third year of the State of West Virginia, the judge of the criminal court of Gullmore county, and the judge of the circuit court of Gullmore county were to meet together for the purpose of deciding two matters,—one relating to the trial of Moseby Allen, the retiring sheriff, for embezzling funds of the county, amounting to thirty thousand dollars, and the other, an action pending in the circuit court, wherein the State of West Virginia, at the relation of Jacob Wade, was seeking to recover this sum from the bondsmen of Allen. In neither of the two cases was there any serious doubt as to the facts. It seemed that it was customary for the retiring sheriff to retain an office in the court building after the installation of his successor, and continue to attend to the unfinished business of the county until all his settlements had been made, and until all the matters relating to his term of office had been finally wound up and administered.

In accordance with this custom, Moseby Allen, after the expiration of his term, had continued in his office in a quasi-official capacity, in order to collect back taxes and settle up all matters carried over from his regular term.

It appeared that during Allen's term of office the county had built a court-house, and had ordered certain levies for the purpose of raising the necessary funds. The first of the levies had been collected by Allen, and paid over by him to the contractors, as directed by the county court. The remaining levies had not been collected during his term, but had been collected by the new sheriff immediately after his installation. This money, amounting to some thirty thousand dollars, had been turned over to Allen upon his claim that it grew out of the unfinished affairs of his term, and that, therefore, he was entitled to its custody. He had said to the new sheriff that the levy upon which it had been raised was ordered during his term, and the work for which it was to be paid all performed, and the bonds of the county issued, while he was active sheriff, and that he believed it was a part of the matters which were involved in his final settlements. Jacob Wade, then sheriff, believing that Allen was in fact the proper person to rightly administer this fund, and knowing that his bond to the county was good and would cover all his official affairs, had turned the entire fund over to him, and paid no further attention to the matter.

It appeared that, at the end of the year, Moseby Allen had made all of his proper and legitimate settlements fully and satisfactorily, and had accounted to the proper authorities for every dollar that had been collected by him during his term of office, but had refused and neglected to account for the money which he had received from Wade. When approached upon the subject, he had said plainly that he had used this money in unfortunate speculations and could not return it. The man had made no effort to check the storm of indignation that burst upon him; he firmly refused to discuss the matter, or to give any information in regard to it. When arrested, he had expressed no surprise, and had gone to the jail with the officer. At the trial, his attorney had simply waited until the evidence had been introduced, and had then arisen and moved the court to direct a verdict of not guilty, on the ground that Allen, upon the facts shown, had committed no crime punishable under the statutes of West Virginia.

The court had been strongly disposed to overrule this motion without stopping to consider it, but the attorney had insisted that a memorandum which he handed up would sustain his position, and that without mature consideration the judge ought not to force him into the superior court, whereupon his Honor, Ephraim Haines, had taken the matter under advisement until morning.

In the circuit court the question had been raised that Allen's bond covered only those matters which arose by virtue of his office, and that this fund was not properly included. Whereupon the careful judge of that court had adjourned to consider.

It was almost nine o'clock when the Honorable Ephraim Haines walked into the library to consult with his colleague of the civil court. He found that methodical jurist seated before a pile of reports, with his spectacles far out on the end of his nose,—an indication, as the said Haines well knew, that the said jurist had arrived at a decision, and was now carefully turning it over in his mind in order to be certain that it was in spirit and truth the very law of the land.

"Well, Judge," said Haines, "have you flipped the penny on it, and if so, who wins?"

The man addressed looked up from his book and removed his spectacles. He was an angular man, with a grave analytical face.

"It is not a question of who wins, Haines," he answered; "it is a question of law. I was fairly satisfied when the objection was first made, but I wanted to be certain before I rendered my decision. I have gone over the authorities, and there is no question about the matter. The bondsmen of Allen are not liable in this action."

"They are not!" said Haines, dropping his long body down into a chair. "It is public money, and the object of the bond is certainly to cover any defalcations."

"This bond," continued the circuit judge, "provides for the faithful discharge, according to law, of the duties of the office of sheriff during his continuance in said office. Moseby Allen ceased to be sheriff of this county the day his successor was installed, and on that day this bond ceased to cover his acts. This money was handed over by the lawful sheriff to a man who was not then an officer of this county. Moseby Allen had no legal right to the custody of this money. His duties as sheriff had ceased, his official acts had all determined, and there was no possible way whereby he could then perform an official act that would render his bondsmen liable. The action pending must be dismissed. The present sheriff, Wade, is the one responsible to the county for this money. His only recourse is an action of debt, or assumpsit, against Allen individually, and as Allen is notoriously insolvent, Wade and his bondsmen will have to make up this deficit."

"Well," said Haines, "that is hard luck."

"No," answered the judge, "it is not luck at all, it is law. Wade permitted himself to be the dupe of a shrewd knave, and he must bear the consequences."

"You can depend upon it," said the Honorable Ephraim Haines, criminal judge by a political error, "that old Allen won't get off so easy with me. The jury will convict him, and I will land him for the full term."

"I was under the impression," said the circuit judge, gravely, "that a motion had been made in your court to direct an acquittal on the ground that no crime had been committed."

"It was," said Haines, "but of course it was made as a matter of form, and there is nothing in it."

"Have you considered it?"

"What is the use? It is a fool motion."

"Well," continued the judge, "this matter comes up from your court to mine on appeal, and you should be correct in your ruling. What authorities were cited?"

"Here is the memorandum," said the criminal judge, "you can run down the cases if you want to, but I know it is no use. The money belonged to the county and old Allen embezzled it,—that is admitted."

To this the circuit judge did not reply. He took the memorandum which Randolph Mason had prepared for Allen, and which the local attorney had submitted, and turned to the cases of reports behind him. He was a hard-working, conscientious man, and not least among his vexatious cares were the reckless decisions of the Honorable Ephraim Haines.

The learned judge of the criminal court put his feet on the table and began to whistle. When at length wearied of this intellectual diversion, he concentrated all the energy of his mammoth faculties on the highly cultured pastime of sharpening his penknife on the back of the Code.

At length the judge of the circuit court came back to the table, sat down, and adjusted his spectacles. "Haines," he said slowly, "you will have to sustain that motion."

"What!" cried the Honorable Ephraim, bringing the legs of his chair down on the floor with a bang.

"That motion," continued the judge, "must be sustained. Moseby Allen has committed no crime under the statutes of West Virginia."

"Committed no crime!" almost shouted the criminal jurist, doubling his long legs up under his chair, "why, old Allen admits that he got this money and spent it. He says that he converted it to his own use; that it was not his money; that it belonged to the county. The evidence of the State shows that he cunningly induced Wade to turn this money over to him, saying that his bond was good, and that he was entitled to the custody of the fund. The old rascal secured the possession of this money by trickery, and kept it, and now you say he has committed no crime. How in Satan's name do you figure it out?"

"Haines," said the judge, gravely, "I don't figure it out. The law cannot be figured out. It is certain and exact. It describes perfectly what wrongs are punishable as crimes, and exactly what elements must enter into each wrong in order to make it a crime. All right of discretion is taken from the trial court; the judge must abide by the law, and the law decides matters of this nature in no uncertain terms."

"Surely," interrupted Haines, beginning to appreciate the gravity of the situation, "old Allen can be sent to the penitentiary for this crime. He is a rank, out and out embezzler. He stole this money and converted it to his own use. Are you going to say that the crime of embezzlement is a dead letter?"

"My friend," said the judge, "you forget that there is no equity in the criminal courts. The crime of embezzlement is a pure creature of the statute. Under the old common law there was no such crime. Consequently society had no protection from wrongs of this nature, until this evil grew to such proportions that the law-making power began by statute to define this crime and provide for its punishment. The ancient English statutes were many and varied, and, following in some degree thereafter, each of the United States has its own particular statute, describing this crime as being composed of certain fixed technical elements. This indictment against Moseby Allen is brought under Section 19 of Chapter 145 of the Code of West Virginia, which provides: 'If any officer, agent, clerk or servant of this State, or of any county, district, school district or municipal corporation thereof, or of any incorporated bank or other corporation, or any officer of public trust in this State, or any agent, clerk or servant of such officer of public trust, or any agent, clerk or servant of any firm or person, or company or association of persons not incorporated, embezzle or fraudulently convert to his own use, bullion, money, bank notes or other security for money, or any effects or property of another person which shall have come to his possession, or been placed under his care or management, by virtue of his office, place or employment, he shall be guilty of larceny thereof.'

"This is the statute describing the offence sought to be charged. All such statutes must be strictly construed. Applying these requisites of the crime to the case before us, we find that Allen cannot be convicted, for the reason that at the time this money was placed in his hands he was not sheriff of Gullmore county, nor was he in any sense its agent, clerk, or servant. And, second, if he could be said to continue an agent, clerk, or servant of this county, after the expiration of his term, he would continue such agent, clerk, or servant for the purpose only of administering those matters which might be said to lawfully pertain to the unfinished business of his office. This fund was in no wise connected with such unfinished affairs, and by no possible construction could he be said to be an agent, clerk, or servant of this county for the purpose of its distribution or custody. Again, in order to constitute such embezzlement, the money must have come into his possession by virtue of his office. This could not be, for the reason that he held no office. His time, had expired; Jacob Wade was sheriff, and the moment Jacob Wade was installed, Allen's official capacity determined, and he became a private citizen, with only the rights and liabilities of such a citizen.

"Nor is he guilty of larceny, for the very evident reason that the proper custodian, Wade, voluntarily placed this money in his hands, and he received it under a bona fide color of right."

The Honorable Ephraim Haines arose, and brought his ponderous fist down violently on the table. "By the Eternal!" he said, "this is the cutest trick that has been played in the two Virginias for a century. Moseby Allen has slipped out of the clutches of the law like an eel."

"Ephraim," said the circuit judge, reproachfully, "this is no frivolous matter. Moseby Allen has wrought a great wrong, by which many innocent men will suffer vast injury, perhaps ruin. Such malicious cunning is dangerous to society. Justice cannot reach all wrongs; its hands are tied by the restrictions of the law. Why, under this very statute, one who was de facto an officer of the county or State, by inducing some other officer to place in his hands funds to which he was not legally entitled, could appropriate the funds so received with perfect impunity, and without committing any crime or rendering his bondsmen liable. Thus a clerk of the circuit court could use without criminal liability any money, properly belonging to the clerk of the county court, or sheriff, provided he could convince the clerk or sheriff that he was entitled to its custody; and so with any officer of the State or county, and this could be done with perfect ease where the officers were well known to each other and strict business methods were not observed. Hence all the great wrong and injury of embezzlement can be committed, and all the gain and profit of it be secured, without violating the statute or rendering the officer liable to criminal prosecution. It would seem that the rogue must be stupid indeed who could not evade the crime of embezzlement."

The man stopped, removed his spectacles, and closed them up in their case. He was a painstaking, honest servant of the commonwealth, and, like many others of the uncomplaining strong, performed his own duties and those of his careless companion without murmur or comment or hope of reward.

The Honorable Ephraim Haines arose and drew himself up pompously. "I am glad," he said, "that we agree on this matter. I shall sustain this motion."

The circuit judge smiled grimly. "Yes," he said, "it is not reason or justice, but it is the law."

At twelve the following night Colonel Moseby Allen, ex-sheriff of the county of Gullmore, now acquitted of crime by the commonwealth, hurried across the border for the purpose of avoiding certain lawless demonstrations on the part of his countrymen,—and of all his acts of public service, this was the greatest.