44 So. 585 | Ala. | 1907
The defendant was convicted of the embezzlement of a part of a certain sum of money, which was delivered to him in Coosa county, to be taken to Tal-ladega county and there deposited in a bank. When the case was before this court at a previous term it was held
Embezzlement is said to be “a sort of statutory larceny, committed by servants * * * where there is a trust imposed” (1 Bishop’s Criminal Law [7th Ed.] § 567); or, as stated in the eighth edition of the same work, “a statutory larceny, created by an apparently bungling attempt to eliminate one of the elements from the common-law offense.” — Section 567, subd. 2. It is of statutory, not common-law origin; the first statute having been enacted in England during the reign of Henry VIII; The gravamen of the offense is that a person who has come rightfully into the possession of personal property as agent, etc., not being capable of committing a trespass, which is a necessary element of larceny, yet fraudulently converts it to his own use, or fraudulently secretes it with intent to convert it to his own use, or the use of another. — 2 Bishop on Criminal Law (8th Ed.) §§ 318, 372; Code 1896, § 4659.
While the elements of the offense are clear, it is sometimes difficult to determine just what evidence is necessary to establish the fact of embezzlement. There must, at least, be some act indicating an intent to segregate the property from that held by the defendant as agent, and hold it for himself, or deprive the owner of the same, or to convert it to his own use. He must assume personal dominion of the property. — Penny v. State, 88 Ala. 105, 7 South. 50; Henderson v. State, 129 Ala. 104, 29 South. 799. “There must be the actual and lawful
It is not necessary, then, to. show what has become of the money, or that any disposition has been made of it, though, in the absence of any other proof, that might become an important circumstance. — Eggleston v. State 129 Ala. 80, 84, 30 South. 582, 87 Am. St. Rep. 17. It was not necessary in this case to show what disposition was made of the money; but it was necessary to show some act by which it was converted to his
We think that what has been said covers the various points raised by the charges and the objections to evidence. It is only necessary to say, for the guidance of the court if the case is tried again, that the indictment is in Code form and not subject to the demurrer to the effect that the money was not sufficiently described.— Huffman v. State, 89 Ala. 33, 8 South. 28; Reeves v. State, 95 Ala. 31, 11 South. 158; Lang v. State, 97 Ala. 41, 12 South. 183; Form No. 40, section 4659, Code 1896. Also, while it is the better practice to state the Christian name of the defendant and of the owner of the property in the indictment, or aver that they are unknown, yet the averment of the owner’s name by his initials is suffi
The judgment of the court is reversed, and the cause remanded.
Reversed and remanded.