88 Ala. 105 | Ala. | 1889
The first count of the indictment charges the larceny, and the second count the embezzlement, of a bale of cotton, the property of a private person. Defendant was convicted on the second count, which is tantamount to an acquittal of the offense of larceny. Embezzlement being a statutory offense, to constitute it the statutory elements must concur. J The second count of the indictment is founded on section 3795 of Code 1886. Before the offense with which the defendant is charged is made out, it must be shown that he was the agent or servant of the owner of the cotton; that it came into his possession by virtue of his employment; and that he has embezzled, or fraudulently converted it to his own use, or fraudulently secreted it with intent to convert it to his own use.
Assuming the facts to be as testified by the State witnesses, and not regarding the statements and explanations of defendant, they are: The owner of the cotton employed him to-haul
Conversion has been defined te be “an unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition, or the exclusion of the owner’s rights.” Conner v. Allen, 33 Ala. 515; Threat v. Stamps, 67 Ala. 96. It is not pretended that there was any secretion, waste, destruction, or wrongful taking of the bale of cotton. Defendant hauled and delivered as directed by the owner. The only acts done by him, not in accord with his duty, were marking the bale and taking a receipt therefor in the name of his son. These acts do not, of themselves, constitute an exercise of dominion in exclusion of the owner’s rights, nor an appropriation to defendant’s own use and beneficial enjoyment; nor withholding from the possession of the owner; nor an alteration of the condition of the cotton. The receipt may have armed defendant with power to exercise dominion, and to withhold the cotton from the possession of the owner; it may be the assertion of an inconsistent claim or right; but the acquisition of such power, and the assertion of such claim or right, do not constitute a conversion of the cotton itself. To complete a conversion, the assumed power must be exercised to the alteration of its condition, or to the exclusion of the owner’s rights. Defendant’s taking the receipt and marking the bale as was done, may be evidence of an intent to claim and appropriate the cotton to his own use; but the mere intent is not sufficient. Delivery of the receipt to the owner was an abandonment of such purpose.
Reversed and remanded.