68 So. 706 | Ala. Ct. App. | 1915
Lead Opinion
The counts of the indictment on which the case Avas submitted to the jury are substantially in the language of the statute to which they are each referable, and the Code forms prescribed for the offense intended to be charged thereby, and, as has been repeatedly held, ¿re sufficiently full and specific, if the defendant,
Count 12, referred to in argument of counsel for appellant, was charged out of the case by the trial court, and will not be treated, as no possible prejudice could have resulted to the defendant from the rulings on the demurrer to that count.
The criticism of counsel for appellant that counts 1, 2, 3, and 4 “fail to aver that the money which defendant-
“We think that an averment to the effect that the defendant, being at the time the agent or clerk of another, did embezzle or fraudulently convert described personal property of his principal which had come into his possession as such agent or clerk, sufficiently shows that his relation to the property mentioned was such as to make it the subject of the offense created by the statute. The statement conveys the idea of possession or custody which was lawful and within the authority conferred by the agency alleged, so as to make the defendant’s holding of the property one in trust for the use or benefit of his principal. This amounts to the same thing as saying in the language of the statute that the defendant’s possession was by ‘virtue of his office or employment.’ ”
It is urged as an objection against some of the counts charging embezzlement that they aver that the defendant “embezzled or fraudulently converted to his own use or the-use of another” the property of his principal, without averring the name of the third person designated as “another.” The clear import of this averment is that the defendant was guilty of a fraudulent breach of the trust that had come into his possession by virtue of the fiduciary relation, and a wrongful and fraudulent assumption of dominion over it in total disregard and denial of the rights of the true owner (Wall v. State, 2 Ala. App. 164, 56 South. 57; Boutwell v. Parker, 124 Ala. 342, 27 South. 309; 15 Cyc. 521g), and it is wholly unimportant as to whether the defendant was the recipi
The averment in.the first count of the indictment that the defendant at the time of the commission of the offense charged was “a public officer of the state of Alabama, to-wit, a clerk of the board of inspectors of convicts, the same being one of the officers designated in section 6485 of the Code of Alabama,” and that he converted to his own use money received by him “in his official capacity,” presents one of the serious questions in the case. The courts of the state take judicial notice of the public officers of the state, and the source from which they derive their authority, and, if these averments are inconsistent with the provisions of the statute, they are negatived thereby, and must necessarily fail.—United States v. Smith, 124 U. S. 531, 8 Sup. Ct. 595, 31 L. Ed. 534; Cary v. State, 76 Ala. 778; Beggs v. State, 55 Ala. 108. The Supreme Court of this state has not laid down any general rule to govern in determining what is required to constitute a state officer, or a person an officer of the state. Its holdings in this respect are that, where- one derives his authority directly from the state by legislative enactment, and the duties imposed by the enactment are of a public character, and the terms and compensation are definitely fixed, such person is an officer of the state.—State, ex rel. Robertson v. McGough, 118 Ala. 164, 24 South. 395. “Every public officer, judicial, ministerial, or executive, deriving place and authority from the Constitution or laws, is an officer of this State.”—State, ex rel. Winter v. Sayre, 118 Ala. 31, 24 South. 89.
That an office created by legislative enactment, which concerns the general public as touching the administra
“An office is defined to be a public charge or employment, and he who performs the duties of the office is an officer. * * * Although an office is an employment, it does not follow that every employment is an office. A man may certainly be employed under a contract, express or implied, to do an act, or to perform a service, without becoming an officer. But, if the duty be a continuing one, which is defined by rule prescribed by the government, and not by contract, which an individual is appointed by the government to perform, who enters
“A government office is different from a government contract. The latter, from its nature, is necessarily limited in its duration and specific in its objects. The terms agreed upon define the rights and obligations of both parties, and neither may depart from them without the assent of the other.”—United States v. Hartwell, 73 U. S. 385, 402, 18 L. Ed. 830.
The power to subject an individual to involuntary servitude as a punishment for crime is an attribute of sovereignty that can only be constitutionally exercised by the state or under its express authority. — Const. 1901, § 32. The convict department belongs to the executive division of the government, and is an agency of the state designed to aid in the administration of public justice in affording adequate and just means for punishing criminals.—Ex parte Mayor, etc., of Birmingham, 116 Ala. 186, 22 South. 454. This department consists, not only of the three inspectors appointed by the Governor, but of these and the subordinate officers provided for by the statutes creating the department. The three clerks of this department are appointed by the president of the board, who is the head of that department, by and with the approval of the Governor.— Code, § 6485. And it is made the duty of these three clerks, under the direction of the president of the board of inspectors, to keep the
It is insisted that the matter of handling the funds of the convict department, in view of the provisions of the statute requiring all accounts to be paid to the presi
The law clearly contemplates that money belonging to the state will be brought into the state treasury through the convict department, and while it requires all moneys due the department to be paid to the president of the board of inspectors, and requires him to make quarterly settlement with the state auditor, it clearly contemplates that a complete record and strict account of all such funds shall be kept by the clerical force in the office of the president, and to that end necessitates counting and handling of cash by that force under the supervision and “direction” of the president. — Code, §§ 6480, 6485, 6498-6500. The question, therefore, as to whether the funds alleged to have been embezzled by the defendant came into his hands by virtue of his office, was a matter of evidence.
It is a truism that public office is a public trust, and an agency of the government to conserve the public interest.—6 Words and Phrases, 4922, 4933; Ex parte Yale, 24 Cal. 241, 244, 85 Am. Dec. 62; People v. Duane, 121 N. Y. 367, 24 N. E. 845.
Any fund or property belonging to the state coming into the hands of a public officer of the state by virtue of his office ipso facto constitutes such officer a trustee for the state.—Wolffe v. State, 79 Ala. 206, 58 Am. Rep. 590. And if the fund or property was received by such officer to be held by him for a specified purpose or to be delivered to another officer of the state, for the use of the state, although the officer had no right to receive it, such officer would be a bailee of the state and liable as such.—Lang v. State, 97 Ala. 41, 12 South. 183; Schouler on Bailments, §§ 2-4; Compson v. State, 102 Ark. 213, 143 S. W. 897, 903; Storms v. State, 81 Ark. 25, 98 S. W. 678; U. S. v. Thomas, 15 Wall. (82 U. S.) 344, 21 L. Ed. 89; York County v. Watson, 15 S. C. 1, 40 Am. Rep. 678; Commonwealth v. Chatham, 50 Pa. 181, 88 Am. Dec. 539.
In drawing the indictment in this case, the practice approved by the Supreme Court seems to have been followed.—Rollins v. State, 98 Ala. 79, 13 South. 280; Butler v. State, 91 Ala. 87, 9 South. 191; Hornsby v. State, 94 Ala. 55, 10 South. 522.
There was no impropriety in allowing the witness S'eibels to testify, in substance, that there was no evidence before the grand jury that returned the indictment showing a more particular description of the money alleged to have been stolen.—Code, § 7298; Burton v. State, 115 Ala. 1, 22 South. 585; Blackman v. State, 98 Ala. 77, 13 South. 316. The purpose of this evidence was not to impeach the testimony of Harold, but to sustain the averments of the larceny counts in the face of Harold’s testimony tending to show that there was some evidence before the grand jury from which they might have found a more particuar description. After the witness Seibels had testified that there was evidence that the money consisted of- gold coin amounting to $2,000 and currency to the amount of $48,000, he was asked the following question: “Wasn’t there evidence before the grand jury as to the kind of money it was?” This question merely called for a repetition of the previous statement of the witness, and the court was correct in sustaining the objéction to it. The testimony of this witness shows, and as for the matter there was no conflict in the evidence of the point, that Harold testified before the grand jury, and the defendant was not prejudiced by the ruling of the court sustaining the objection to the question to Seibels calling for this fact.
Any emotion or feeling of surprise on the part of the examiner of public accounts resulting from defendant’s conduct was not admissible evidence on any theory, and the court properly sustained the objection of the solicitor to questions calling for this evidence.
“Human emotions and human passions are not in themselves physical entities, susceptible of proof, as such.—Thornton v. State, 113 Ala. Ala. 47, 21 South. 356, 59 Am. St. Rep. 97; Carney v. State, 79 Ala. 14.
The letter signed by Oakley and addressed to the defendant was relevant and admissible on the question of the defendant’s authority to receive, handle, and deposit the funds of the department. It was also relevant as showing the intimate relation between the defendant and Oakley, and in support of the state’s theory that a conspiracy to convert the funds of the department existed between defendant and Oakley, which, if true, destroyed defendant’s theory that a delivery of the funds alleged to have been converted by defendant to Oakley would
The evidence clearly afforded an inference that the defendant fraudulently converted the money to his own use, and that he had never restored it to the treasury or other legal custodian; and there was evidence tending to show that the president of the board had guilty connection with the conversion and embezzlement by Lacy. The argument of the solicitor objected to was not the statement of a fact outside of the range of the evidence, and the legitimate inferences afforded by the evidence. The language used appears to have been uttered as an inference, and we cannot say that it was wholly unsupported by the evidence and should have been excluded. The assertion that “his counsel know he is guilty” cannot be construed to mean that they possessed such knowledge outside of the evidence in the case. Manifestly, the purport of this assertion was that the evidence was so plain that those who had heard the evidence given during the trial must be convinced of defendant’s guilt. There was no error in overruling the objection of the defendant to this argument.—Hobbs v. State, 74 Ala. 39; Langham v. State, 12 Ala. App. 461, 68 South. 504.
The principles above stated, in discussing the suffi- • ciency of the first count of the indictment, justified the
All drafts and checks coming into the hands of James G. Oakley, as president of the board of inspectors of convicts, by virtue of his office, and payable to him as such president, were the property of the state, and a general deposit of these checks and drafts in bank, by Oakley to his credit, thus authorizing the bank to collect them and mingle the proceeds thereof with the funds of the bank, was a conversion of this property of the state.—Alston v. State, 92 Ala. 124, 9 South. 732, 13 L. R. A. 659. The funds represented by these checks and drafts were trust money in the. hands of Oakley, and these cheeks and drafts bore on their faces evidence that they represented a trust fund, which Oakley held as trustee of the state, and when the bank, with notice of this fact, accepted a general deposit of them, entering the proceeds to the credit of Oakley, the bank became a trustee, in invitum with him and liable to account to the state for the identical property received from Oakley.—Wolffe v. State, 79 Ala. 201, 58 Am. Rep. 590. The bank had the right to discharge this liability, and could only do this by restoring to the state treasury the identical property so converted by ■ it, or its equivalent in cash (Const. 1901, § 100), and, if the Montgomery Savings Bank turned over to the defendant such property or its legal equivalent in value to be paid into the state treasury for it, the defendant was pro hac vice the agent of the bank, and if after he received the funds for that purpose he fraudulently converted them to- his own use, hé would be guilty of embezzlement, and this notwithstanding he may have accepted the money with
As heretofore stated, as to whether the defendant had official authority to receive the money from the hank was one of fact for the jury, and, as we have shown, this averment and such finding is not inconsistent with or negatived hy any of the provisions of the statute regulating his official duties. If he did not have authority, as an officer of the state, to receive the funds, hut, acting under the instructions of his superior, as the jury had a right to find from the evidence, he went to the bank and took therefrom money deposited in the name of Oakley to be carried and deposited in the state treasury, he was for that purpose an agent or servant of Oakley, as president of the board of convict inspectors. On the other hand, if the defendant accepted from Brown the check payable to and indorsed by Brown for the purpose of collecting it and paying the proceeds into the state treasury, or if the check was left on defendant’s desk to be delivered to Oakley, and the defendant collected the check and fraudulently converted the proceeds to his own use, and at the time he assumed dominion over the check he entertained the criminal intent to appropriate the proceeds thereof to his own use, he would be guilty of larceny.—Verberg v. State, 137 Ala. 77, 34 South. 848, 97 Am. St. Rep. 17; Eggleston v. State, 129 Ala. 83, 30 South. 582, 87 Am. St. Rep. 17; Dozier v. State, 130 Ala. 57, 30 South. 396. The question as to whether defendant entertained the criminal intent was, under the evidence, for the jury.—Verberg v. State, supra; Talbert v. State, 121 Ala. 34, 25 South. 690.
An application of the principles above stated justifies the rulings of the trial court in the refusal of the affirm
The counts of the indictment, except count 31, to which charges 57,.84, and 85 relate, describe the property as “$2,000 of the lawful gold goin of.the United States of America, and $48,000 of lawful currency of the United States of America, of the aggregate value of $50,000, a more particular description of which is to the grand jury unknown,” and count 31 describes it as “$12,000 of the lawful currency of the United States of America, a more particular description of which to the grand jury is unknown.” Charge 57 was therefore properly refused, as it predicates an acquittal on a finding by the jury that the grand jury knew at the time it found said indictment a further description, and not a more particular description, of the currency. The charge was correctly refused for another reason; the knowledge which the grand jury had at the time must have been knowledge from the evidence they had before them, and this fact the charge pretermits.
Charge 84 was correctly refused, because it justifies an acquittal if the jury did not believe from the evidence that the grand jury “had before them no other description” of the property, and not a “more particular description” of the property, as charged in the indictment. The charge is faulty in another respect. Before an acquittal could be predicated on this fact, the jury must find from the evidence that the grand jury had knowledge arising from evidence before the grand jury of a more particular description of the property. The absence of evidence of a more particular description at the time the true bill is found is the fact that justifies the averment of unknown particular description.—Jones v. State, 115 Ala. 67, 22 South. 566. But the state is not required to prove this
Charge 85 was properly refused, because it ignores ¿count 31 of the indictment and the tendencies of the ¿evidence supporting this count.
Charge 48 invades the province of the jury, and also -singles out and gives undue prominence to the fact of the defendant’s return without arrest.
¿Charge 49 invades the province of the jury.
-'Charge 50 is argumentative.
Charge'51 invades the province of the jury, in that it ignores the tendencies of the evidence going to show that Oakley had guilty connection with the conversion of the funds by the defendant.
On the principles stated above, even though the defendant received the' money with criminal intent, he could be guilty of embezzlement (Barr v. State, 10 Ala. App. 111, 65 South. 197), and, although the defendant had no intent to injure or defraud the bank, yet he could be guilty of embezzlement or larceny of the property of the state, as we have shown above. For these reasons, charge 58 was properly refused.
Charges 61, 62, 81, and 86 ignore phases of the evidence tending to show that Oakley had guilty connection with the crime. Some of the counts of the indictment on which the case was submitted to the jury charged embezzlement, while others charged larceny, and the property described in some of the counts is not that described in others, and the ownership of the property is laid in different persons. Although the jury may have been doubtful as to proof of some one or more of the material facts in some one of these counts, yet as to some of the counts they could well have been convinced of the defendant’s guilt beyond all reasonable doubt.
Charge 88, besides being argumentative, is not a cor-' rect statement of the law. The defendant could be guilty of embezzlement, although he had no intention of embezbling the money at the time it came into his possession.
Charges 89 and 90 were misleading.' Although there may have been no positive proof of the failure to deliver to the rightful person the money alleged to have been embezzled or stolen, the evidence affords ample room for legitimate inferences that it was never delivered to any one having authority to receive it. Furthermore, these charges ignore the tendency in the evidence that Oakley was a confederate in the crime.
Charges A, B, E, and F were abstract; there was no evidence in the case that Lacy made any effort to send money to the Birmingham bank on which check was drawn by Oakley, and his conduct on the occasion of carrying the suit case to the depot and turning it over to a negro porter to be checked into the checkroom is so contrary to the usual method of handling money in such, quantity that it can hardly be said that the evidence affords an inference that it was the defendant’s intention and purpose to ship1 the suit case to the bank at Birmingham.
We find no error in the record, and the judgment of the city court is affirmed.
Concurrence Opinion
concurs in the conclusion of affirmance reached without committing himself to all that is said in the opinion.