108 So. 398 | Ala. Ct. App. | 1926
The indictment was not subject to any of the demurrers interposed. Code 1923, § 3960; Walker v. State,
The defendant was employed by the Dirago Candy Company of Tuscumbia to sell candy on commission. The defendant lived in Lauderdale county, and sold candies for his employer to customers in Colbert, Lauderdale, and Franklin counties. To all of these customers defendant made deliveries of the candies sold, sometimes collecting at the time of delivery and sometimes extending credit. Each transaction was supposed to be reported to Dirago Candy Company, and return of the cash collected made. The employment continued for several months, when the defendant either quit or was discharged, after which Dirago claimed that defendant had not accounted for all of the money received by him in payment of the candies sold, claiming a shortage of some $1,200. Upon the trial, the jury found the amount of the shortage to be less than $25. The defendant proved a good character, and claims that there is still due him some amount as commissions. The transactions covered several months, and embraced a large number of items and accounts with many different people, but there is no act of fraudulent conversion or appropriation shown to have taken place in Colbert county, and in fact the only evidence of any sort of conversion may be said to be the inference to be drawn from the testimony of Dirago that he delivered the candy and failed to receive the cash for it.
The criminal law was never designed to enforce the payment of debt nor to adjudicate mere civil disputes between parties, and where, by reason of contractual relations, differences in accounts arise and a criminal prosecution is resorted to, the state will be held to the strict rules of proof in making out its case against the defendant.
In the case of Henderson v. State,
"There is an absence of evidence to show that any conversion or appropriation of the money occurred in Pike county."
A mere failure to return the money intrusted to an agent, without evidence of a fraudulent appropriation or disposition, is not sufficient to constitute the crime. 2 Bish. New Crim. Law, par. 376. In Knight v. State,
The dealings between the prosecutor and the defendant covered a period of about two years, the items sold ran into the hundreds, the customers to whom candy was sold were many. Some of the customers bought on credit and some for cash. The territory in which candy was sold embraced Colbert, Lauderdale, and Franklin counties. Collections were made by defendant, and settlements made with the prosecutor's drivers, in Lauderdale county. Starting out with an alleged embezzlement of $1,200, the amount dwindled to less than $25. If as matter of fact this $25 was fraudulently appropriated, when was it done, and where was it done? The evidence furnishes no definite answer, nor facts from which the jury were authorized to base their verdict. Convictions for crime must be based upon specific, proven facts, connecting defendant with the commission of crime in the jurisdiction in which the cause is being prosecuted. The defendant was entitled to the general charge.
The defendant may upon proper and sufficient proof be convicted of the fraudulent misappropriation of certain moneys coming into his hands as agent, but the mere failure to pay a balance found to be due, growing out of numerous transactions covering a period of two years, while furnishing a basis for a civil suit is not sufficiently definite to sustain a criminal charge.
There are other questions presented upon the rulings of the court which will not probably arise in another trial.
The judgment is reversed, and the cause is remanded.
Reversed and remanded.