— The record shows that the defendant was convicted of embezzling money which was alleged to have come into his possession by virtue of his employment as agent or servant of one Bainer, which is made punishable by the statute as if he had stolen it.- — Code of 1886, § 3795. This conviction was under the third count of the indictment, which operated, under our practice, as an acquittal under all the other counts of the indictment. We confine ourselves, therefore, to a consideration of the charge made in this single count.
The evidence showed that in September, 1886, Bainer had sent the sum of three hundred and ninety-five dollars in a registered letter, from a post-office in Choctaw county, to Cuba station, another post-office in Sumter county, through the mail service of the United States government. ' The defendant was the mail-rider between these two points, and the evidence tends to prove, that; while thus engaged, he appropriated the money by fraudulently converting it to his own use.
In our 'opinion, the defendant, under these circumstances, was not the agent or servant of Bainer, who could in no sense be said to be his principal, or employer. He was not in the
The Circuit Court erred in not giving the charge requested by the defendant, to the effect, that, if the jury believed the evidence, they must find the defendant not guilty as to the third count in the indictment.
The rules of practice now requiring a former acquittal, or conviction, to be specially pleaded, we do not make an order in this court discharging the defendant, but reverse the judgment, and remand the cause, that the order may be made by the Circuit Court. — Buie of Practice No. 31, 82 Ala. p. Tin.
Beversed and remanded.