Hampton v. State, 54 So. 722

Hampton v. State

54 So. 722 | Miss. | 1911

Anderson, J.,

delivered the opinion of the court.

The appellant, Hampton, was convicted of embezzlement, and sentenced to the penitentiary for three years, from which judgment he appeals to this court.

He is charged with embezzling the funds of the American Express Company. At the time of the alleged embezzlement he had been the agent of that company at Oxford about three years. At about four o’clock on the morning of July 18, 1909, the office of the express company, where appellant was sleeping, was discovered on fire. It was broken into by some parties for the purpose of extinguishing the fire. On entering, the appellant was found lying in bed, and was picked up and carried out. The office was burning from the inside. On investigation it was found that the appellant was short with the express company eleven hundred dollars and seventy-nine cents. This shortage he admitted, but claimed that just previous to the fire the office was entered by some unknown person or persons, who struck him a blow which, rendered him senseless, and tied him to his bed with a rope, and robbed him of the funds of the company, which he had in his possession in a shot sack under his pillow. The .contention of the state is that the appellant was not robbed, that he set fire to the *183■office himself, that he was not tied in bed, and that his purpose in setting fire to the office and claiming that he had been robbed was to cover up the crime which he had ■committed.

The indictment charges the appellant with embezzling ■the funds of the American Express Company, “which is duly incorporated,” while the evidence for the state showed that the American Express Company was not a corporation, but a partnership. - It is contended for the appellant that this was a material variance between the indictment and proof. This question was properly raised in the court below by motion to exclude the testimony for the state, which was overruled, by a request for a peremptory instruction to the jury to return a verdict of not guilty, which was denied, and by the motion for a new trial.- There was no such offense at common law as embezzlement; it is made such by statute; it is a statutory larceny. The rules of law in cases of larceny, with reference to alleging and proving the ownership of the property charged to have been stolen, apply with equal force to the crimes of embezzlement,- false pretenses, and other kindred offenses. 2 Bishop’s New Criminal Procedure, § 320; State v. Tatum, 50 South. 490. The “American Express Company, a corporation,” is a materially different concern from the “American Express Company, a partnership,” and an indictment for embezzling the funds of one cannot be sustained by proof that the funds belong to the other.

The state’s witness, Hunter, who was appellant’s assistant in the express office, testified that, four or five months before the office was set on fire and the shortage discovered, while he and the appellant were on .their way to the depot to meet a train, the appellant told him he was expecting McGuirck, who was an agent of the express company having supervision of his and other offices of the company, and handed witness a note in an envelope, and instructed him to return to the office, which *184witness did, and, if he (the appellant) telephoned him McGuirck had come, to deliver the envelope to the Farmers’ Bank, and take what the bank gave him, and put it in the “pony safe;” that when the train came he received a message, not from appellant, but from the depot agent, Granberry, that McGuirck had come; that thereupon he delivered the envelope to the bank, and got from it a package marked on the back, “four hundred and ninety dollars,” which he put in the safe, and which was there when McGuirck came. The testimony was admitted over the objection of appellant. There are two-grounds for objection: First, that it tended to prove an entirely separate and distinct embezzlement from the one for which appellant was being tried; second, that the information given the witness by-the depot agent was hearsay. It is clear that the testimony was not offered to prove another crime than that for which appellant was tried. The purpose was to prove the specific crime laid in the indictment. The testimony of Kettering, the superintendent of the express company, tended to show that the shortage that was discovered on July 18th, after the fire, was the result of peculations by the appellant covering a period of several months prior thereto, probably running as far back as the latter part of 1908. For this purpose it was clearly competent. The information received by the witness Hunter from the depot agent is not within the rule against hearsay testimony. It was competent to show the information on which Hunter acted, and not for the purpose of establishing a material fact. It was immaterial how Hunter got the information. The material fact proven was that McGuirck did come, which resulted in the four hundred and ninety dollars being placed in the pony safe in accordance with appellant’s instructions.

On cross-examination of Kettering, the appellant sought to show, which the court refused to permit, that he (Kettering) had offered to abandon the prosecution *185of appellant if the shortgage was made good. It is •claimed ■ that this testimony was material, as affecting the credibility of the witness.. The question of the credibility of witnesses is a broad field of inquiry. It is difficult to lay down any rule prescribing the limitations of such an investigation. This testimony was competent; but, in view of the fact that Kettering’s evidence as to the material facts was not controverted, the refusal of the court to admit it was harmless. What reason could there be for showing Kettering’s bias and interest, when the substantial facts to which he testified were admitted?

The giving of the fifth instruction for the state is assigned as error. That instruction is in this language: ■“The court charges the jury, for the state, that if they believe from the testimony in this case beyond a reasonable doubt that the defendant had collected certain sums of money, no matter what amount, which was then and there the property of the American Express Company, and that said money was never given to or remitted to the said company, then it devolves upon the defendant to give a reasonable explanation of what became of said .money; and unless said explanation creates in the minds of the jury a reasonable doubt of defendant’s guilt, then it is the duty of the jury to convict the defendant, provided they believe from all of the testimony in the case beyond a reasonable doubt that the defendant is guilty ■as charged in the indictment.”

The instruction is plainly erroneous for two reasons: First, it is confusing and misleading. It is difficult to understand what idea the court intended to convey to the minds of the jury. In one clause the jury were informed that a mere failure on the part of appellant, without explanation, to turn over to the express company the funds- in his hands belonging to it established his guilt; and in another clause they Were informed, by way of proviso, that the testimony should show this guilt beyond a reasonable doubt. And, second, the appellant was in-*186dieted under section 1136, Code of 1906. Under the statute it was a question for the jury whether the mere failure hy the appellant to turn over to the express company the -funds in his hands was sufficient to show guilt. This instruction fixes such failure, without explanation, as conclusive of guilt, and shifts the burden to the defendant to show a reasonable excuse for such failure. The burden 'of proof never shifts in a criminal' case. Ford v. State, 73 Miss. 734, 19 South. 665, 35 L. R. A. 117; Herman v. State, 75 Miss. 340, 22 South. 873; Brandon v. State, 75 Miss. 905, 23 South. 517; Blalock v. State, 79 Miss. 518, 31 South. 105; Raines v. State, 81 Miss. 489, 33 South. 19. Reversed and remanded.