Knight v. State

41 So. 911 | Ala. | 1906

SIMPSON, J.

The. defendant in this case was convicted under an indictment charging embezzlement. No demurrer was interposed to the indictment, nor any supposed defects brought to the attention of the court in any legal way. — Code 1896, § 4895; 10 Ency. PI. & Pr. 564. The record sufficiently shows a continuous proceeding and the presence of the defendant throughout the trial. — Sudduth v. State, 124 Ala. 32, 27 South. 487. The arraignment is also sufficiently shown. — Fernandez & White v. State, 7 Ala. 511.

It is claimed that there is a variance between the allegations in the indictment and the proof, in that the indictment gives the name of the person whose money is alleged to have been embezzled as “H. G. Kilgore,” while the proof shows his name was “Howell Green Kilgore.” Kilgore testified himself that his name was H. G. Kilgore, and on cross-examination stated that his name was Howell Green Kilgore; that people called him “Howell”; that his initials were “IT.. G.”; that he signed checks and received mail by that name; that people who knew his name called him “Howell,” and those who did not called him “H. G.”; and that his letterheads were printtd “H. G. Kilgore.” There was no dispute as to the identity of the party, and this court “is satisfied that no injury resulted therefrom to the defendant.” This Avas not such a Arariance as to entitle the defendant to the general charge. — Code 1896, § 4333; State v. Rook, 42 Kan. 419, 22 Pac. 626; State v. Flack, 48 Kan. 146, 29 Pac. 571; Franklin v. State, 37 Tex. Cr. R. 312, 39 S. W. 680; Thompson v. State, 48 Ala. 165; Franklin v. State, 52 Ala. 414; Lyon v. State, 61 Ala. 224; Lowe v. State, 134 Ala. 154, 32 South. 273; Crittenden v. State, 134 Ala. 145, 32 South. 273.

■ The first count in the indictment alleges that the property embezzled was “fifty dollars, lawful money of the United States of America,” and the second count alleges only that it was “money to the amount of fifty dollars.” There was no proof to sustain the allegation in the first count, as to the kind of money; and there was no allegation in the second count, and no proof that the money- therein referred to ivas of any value. These being the facts of the case, the court erred in giving the general charge in favor of the state. — Burney v. State, 87 Ala. 80, 6 South. 391. For another reason it was error to give the general charge for the state, to-wit: The evidence showed that the money was delivered to the defendant in Coosa county to be carried to Talladega, and that the money which iie did deposit was carried to and deposited in the bank in Talladega county. The court could not say as a matter of law that the embezzlement took place in Coosa county. — Henderson v. State, 129 Ala. 104, 29 South. 799.

Without going specifically into' an examination of each charge refused, it is sufficient to say, in connection with what has already been said, that in order to sustain a conviction in this case the burden was on the state to show that the property described in the indictment was embezzled in Coosa county. The facts detailed in the evidence did not constitute the defendant a common carrier, and the charge based on that theory was properly refused.

The judgment of the court is reversed and the cause remanded.

Weakley, C. J., and Haralson and Denson, JJ., concur.