Lang v. State

97 Ala. 41 | Ala. | 1892

STONE, O. J.

— The defendant was indicted for the crime of embezzlement; the sum charged to have been embezzled being about two thousand dollars. This form of averment of the subject of the crime, and of its value is sufficient under our statute. Code of 1886 § 3810. . The indictment was returned into court July 21, 1892, and contains two counts. The sufficiency of the first count was not assailed in the City Court pending the trial. Its sufficiency was attempted to be raised on a motion in arrest of judgment, and it is contended before us that it is insufficient. We hold the City Court did not err in overruling this motion. That count is a substantial compliance with our statutes in regard to indictments. Code of 1886, Vol. 2, § 4366, and form 39, p. 270; Drake v. State, 60 Ala. 62.

The second count was demurred to, and the demurrer overruled. We are referred to a statute approved February 28, 1889 — Sess. acts, 68 — as probably bearing on the sufficiency of this count. We are at a loss to determine to our satisfaction precisely what that statute means. How any one can become a bailee of money or other property for his own benefit, or how embezzlement may be committed by having in his possession money or a chattel, received or held for his own benefit, we confess ourselves unable to conjecture. A bailee is a species of agent to whom something movable is committed in trust, not for the bailee, but for another. Possibty it is within the power of legislation to so enlarge the crime of embezzlement as to make it embrace a fraudulent secretion or conversion of money or other thing of value, partially owned by him conjointly with others. We need not decide this. The statute we are considering is not susceptible of that interpretation. Whether the statute can be given effect to or not, we must construe it in the language in which the legislature clothed it. The second count, does not follow the statute, and the City Court erred in overruling the demurrer to it.

There was a great mass of testimony introduced for the State — objected and excepted to seriatim — intended to show what is known as the scienter in the law books. In other words, its intention was to show that the defendant had knowingly and willingly converted the moneys of the company he was serving, to his own nse. Defendant had been in the employment of the partnership known as the Montgomery Furniture Company as its agent. He was the superintendent, or managing agent of the firm for about four years. In his relation of manager, the moneys of the partnership passed through his hands. It is not shown that the proprietors, the Hollanders, had any personal connection Avith the management, either in any act performed, or in their presence at the store. On this question the record is silent. Defendant was not the book-keeper, but he made some entries in the blotter, and some in the cash book.

The cases of Stanley v. State, 88 Ala. 154, and Reeves v. State, 11 So. Rep. 158; 96 Ala. 31, have settled the principle, that on a trial in Avhich an agent is charged Avith embezzling funds of his principal which have come into his hands in virtue of his agency, his conversion and failure to account for other sums of money similarly received in the line of his agency are competent testimony on the inquiry whether the act Avas done knowingly and intentionally. Much of the testimony introduced, having this' avowed object, was clearly admissible. Where entries in the blotter and the cash book are each shown to be in the hand writing of the defendant, and they show a discrepancy, such entries are competent evidence. So, if money be shown to have gone into the hands of the defendant, and it is shown that he either entered, or cause to be entered, a smaller sum as the cash receipts on that occasion, such facts may be put in evidence. But the books or parts of books, not shown to be in his hand-writing, with exceptions noted abve, are not legal evidence against him, unless there be testimony tending to show his attention Avas called to them, and that he made some admissions in regard to the portions offered in evidence. And if his attention was called to parts of books, and he is shown to have made admissions in relation to such parts, this lets in, not the whole book, but only the parts his alleged admissions refer to.

The paper, “Exhibit A” to bill of exceptions, purports to be a detailed statement of the many items going to make up the alleged shortage in defendant’s account. It is shown that in an interview betAveen Burks and defendant, at which the past and present book-keepers were probably present, that paper was produced, and an extended discussion had in relation to it, and in relation to the various items upon it. Witnesses disagree as to what defendant said. It was for the jury to determine what, if any, admissions defendant made in that interview. Presented as the question is in the bill of exceptions, the City Court committed no error in any ruling in regard to that paper. Nor was there error in receiving proof of the transactions with Mrs. Campbell and with O’Hara. These were all legitimate subjects of proof on the question of the scienter.

The lease to Wright of the furniture and fixtures in the barber shop was made in the name of the furniture company. Unrebutted and unexplained, the rent money was the property of the company. An explanation of this transaction was offered by the defendant. It was for the jury to determine the bona fieles of this transaction. It was competent testimony. Of course, it should not damage defendant, if satisfactorily explained.

We have said that the present record contains no evidence that the members of the Montgomery Furniture Company had any participation in the management of its affairs, or even that they were personally present in its management. Certainly, unless they were present, and knew of the conduct of the business, charges two and three were properly refused, if for no other reason. There is nothing in the record to justify those charges. So, charge one was properly refused.

Beversed and remanded.