Brown v. StateBrown v. State
Thе appellant, defendant in the court below, was indicted, tried, and conviсted for embezzlement.
The indictment charged that he, being an officer, agent, or clerk of the Baldwin County Building & Loan Association, an incorporated company, embezzled, or fraudulently converted to his own use or to the use of another, money, to wit, the sum of $1,000, which money had come into his possession by virtue of his office or employment as such agent or clerk of said incorрorated company, etc.
Demurrers were interposed to the indictmеnt, and numerous other insistences of error are presented, but from the view wе take of this case a discussion of these questions may be pretermitted аs not necessary to a decision.
On the question of grounds 1 and 2 of the demurrer, however, we merely refer to the decision in the ease of James Knight v. Statе,
As noted, in the .indictment, supra,- the allegation as to the property alleged to have been embezzled, is, “money, to wit: the sum of one thousand dollars.”
It is thе principal insistence of appellant that “there was no proof to sustain this allegation of the indictment, and that the undisputed evidence showеd that, if the accused embezzled anything, he embezzled a check for $1,000,00.”
The transaction upon which this prosecution was; based grew out of the sale, by this аppellant, of a certificate of stock in the Baldwin County Building & Loan Association, to one L. A. Brock, for which Brock gave appellant a chеck, and on this point the evidence is without dispute' or conflict, and it is not contended by. the state that the payment by Brock, to appellant was made in money. He sold him the stock and received a check only, and not monеy, as the indictment alleges.
This conviction, therefore, cannot stand; the state having failed to offer proof of the material allegation that the property alleged to have been embezzled by the accused was “money.” Carr v. State,
In Carr v. State, supra, the court held an indictment which charges the defendant with embezzlement of money or bank notes to the amount of $1,609.90 is not supported by testimony that the depositor. gave the defendant a chеck. The opinion goes further, and says: “Each count * * * charges the defendant with having received, in one form or another, money from Mrs. Rice.” On one asрect of the evidence, he received only a check from her directly or indirectly. Obviously a cheek is not money, and obviously also, unless he did receive money of hers, the jury should have acquitted him. In this connection the court held that charge 20 should have been given. The charge is as follows: “Gentlemеn of the jury, a check is not money, and if you believe from the evidence thаt the defendant received from Mrs. Rice no money, then you must find him not guilty.”
In Hendrix v. State, suрra, this court said: “An indictment charging that accused -by certain false pretеnses obtained $500 is not sustained by proof that he secured a check for $500.” ;
In Pruitt v. State,
The foregoing authorities are exactly in point with the case at bar, and, being decisive of this question, there appears no necessity to prolong the discussion, nor to deal with other questions presented.
The judgment of conviction from which this appeal is taken is reversed for the several errors committed by the court in its rulings upon this question. The mátter is presented in several different manners. The cause is remanded. .
Reversed and remanded.