61 So. 40 | Ala. Ct. App. | 1913
Under the provision of section 6876 of the Code, the defendant was entitled, before entering upon the trial, to cast upon the state the burden of proving the existence of the corporation, mentioned in the indictment, by denying such corporate existence by a sworn plea. — West v. State, 168 Ala. 1, 53 South. 277. The issue raised by such a plea is one of fact, and may be regarded as having been made “before - entering upon such trial,” within the meaning of that expression, as it is used in the statute, when the plea is filed before the selection of the triers of the facts. Some support for this conclusion is found in the ruling made in the case of National Fertilizer Co. v. Holland, 107
This error Avas not rendered harmless by the offer with Avhich the court accompanied its ruling to permit the defendant to prove, under his plea of not guilty, the matter contained in the special plea. That offer did not, as a permission to file the sworn plea would have done, enable the defendant to cast upon the state the burden of proving the existence of the corporation mentioned.
Nor does the bill of exceptions enable us to affirm that the error Avas rendered harmless by the state’s adducing undisputed evidence of the existence of that corporation. It recites the introduction in evidence, over the defendant’s objection, of “a paper purporting to be a certified copy of the charter of the White Company”; but that paper is not set out, nor is it so described as to
It is insisted, in argument, that the testimony as to the defendant’s admitting the embezzlement was subject to the objections made to it on the grounds that there was an absence of other evidence of the corpus delicti, and of the required preliminary showing that the confession was freely and voluntarily made. It does not •appear, from the record, that the testimony was subject to objection on either of the grounds mentioned. It Avas preceded by evidence of the sale by the defendant of the property of his principal and of his receipt, and continued retention of the purchase price, without any accounting to his principal therefor, in such circumstances as to furnish some support, for a conclusion that he embezzled or fraudulently converted it to his own use.
And certainly it cannot he said that the evidence, which disclosed the occasion and attending circumstances of the making of the incriminating admissions testified to, was not such as to Avarrant the court in concluding that they were wholly gratuitous on the part of the defendant, and Avere not induced by any improper influence of hope or fear brought to bear upon him.— Green v. State, 168 Ala. 90, 58 Soutm. 286.
Written charge 14, requested by the defendant, should have been given, as the facts that the defendant was the agent of the principal named in the indictment, and that the money charged to have been embezzled or fraudulently converted by him to his own use was received by him as such agent, were essential features of the ■offense charged against him.
Several written charges requested' by the defendant were properly refused, because they predicated a right to an acquittal upon a finding that the defendant did
Eeversed and remanded.