Ray v. State

May 28, 1918

6 Div. 452.

Versions:79 So. 620

16 Ala. App. 496

1918 Ala. App. LEXIS 187

BRICKBN, J.

The defendant was indicted, tried, and convicted in the circuit court of Tuscaloosa county fоr the offense of embezzlement.

[1-3] Neither of the two questions insisted upon can avail the defеndant on this appeal. The first, as to whether the defendant was guilty of larceny or embezzlement, under the facts in this case, was clearly a question for the jury, and the court properly submitted this question to the jury for its consideration. On this question the testimony of the state and that of the defendant were in sharp conflict. The evidence of the state tended to show that the defendant was the agent of one Pearson, the owner of a mortgage, to collect said mortgage for him; that he collected $50, the amount charged in the indictment, on said mortgage, and there is no сonflict in any of, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the evidence that the defendant converted this $50 to his own use. The testimony of thе defendant tended to show that he collected the $50 in money upon said mortgage and aрpropriated it to his own use, but that, instead of being the agent of said Pearson for the collection of the mortgage, he had bought the mortgage from Pearson at the time it was turned over tо him, and that the money collected belonged to him. If the defendant was the agent of Pearsоn, and collected the money alleged in the indictment as such agent, and then fraudulently convеrted this money to his own use, these facts are sufficient to sustain a conviction for embezzlemеnt. Dozier v. State, 130 Ala. 57, 30 South. 396; Beckham v. State, 100 Ala. 15, 14 South. 859; Holbrook v. State, 107 Ala. 154, 18 South. 109, 54 Am. St. Rep. 65; Eggleston v. State, 129 Ala. 80, 30 South. 582, 87 Am. St. Rep. 17. And if these facts existed, the mere fact that, at the time of making the colleсtion, the defendant stated to the mortgagor that the mortgage belonged to him, would not relievе him from being the agent of Pearson as contended by the state and as charged in the indictment.

The distinction between larceny and embezzlement has been very clearly ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍defined in the cases of Holbrook v. State, supra, and Wall v. State, 2 Ala. App. 157, 56 South. 57. In Holbrook’s Case, it was said:

“But if the goods or money have come to the possession of the servant from a third person, and have never been in the hands of the master, thеy will not be considered to have been in the constructive possession of the master, for thе purposes of larceny. * * * The rule has never been doubted.”

In the instant case, there was testimony showing that the money was collected by the defendant as the agent of Pearson, from the mortgagor,' one Ballard, a third person, and that the money had never come into the pоssession of the mortgagee Pearson; ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍therefore the conversion to his own use by the-defеndant of this money would constitute the offense of embezzlement and not larceny. The jury so found, аnd the verdict based upon this evidence was authorized and should not be disturbed.

[4] It is next insisted that the affirmative charge requested in writing by the defendant should have been given on the grounds that the venue was nоt proven; it being insisted that, if any crime was committed by the defendant in this - case, it was committed in Pic-kens county and not Tuscaloosa county. The undisputed testimony shows that the mortgage was delivered to defendant in Tuscaloosa county on a certain day, that he went to Pickens county and collected the $50 and returned to Tuscaloosa county on that same day, and the defendant testified, “I spent the $50 and used it myself, as it was mine.” It was therefore a question for the jury to determinе as to when he converted the money to his own use, and it appears that there was sufficiеnt evidence to afford an inference that the conversion of this money to his own use occurred in Tuscaloosa county, and therefore the jury were authorized in so finding.

[5] However, from thе facts as shown by the record in this case, rule 35 of the Circuit Court Rules is conclusive of this question, and nеcessitates an adverse holding to the contention of the defendant, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍as it does not aрpear from the record that the point upon which the charge was asked was brought to the attention of the trial court as required by said rule, which is as follows:

“Whenever the general chаrge is requested, predicated upon failure of proof as to time, ven *498 ue or any other point not involving substantive right of recovery or of defense, or because of some immaterial omission in the evidence of the plaintiff or defendant, the trial court will not be put in error ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍for refusing said charge, unless it appears upon appeal, that the point upon which it was asked was brought to the attention, of the trial court before the argument of the case wаs concluded,” etc.

It is not affirmatively shown by the record that the failure of the prosecutiоn to prove the venue was brought to the attention of the trial court, and in the absence of such showing the trial court will not be put in error for refusing the affirmative charge. Hendrix v. State, 11 Ala. App. 207, 65 South. 682; Jones v. State, 13 Ala. App. 10, 25, 68 South. 690; McPherson v. State, 198 Ala. 5, 73 South. 387.

The refusal of other written charges was without error.

The judgment of conviction is affirmed.

Affirmed.