Thomas v. State

| Miss. | Oct 15, 1912

Cook, J.,

delivered the opinion of the court.

Appellant was indicted and convicted for embezzling seventy dollars, the property of Henry Jamerson. The record shows that appellant was the duly qualified guardian of Henry Jamerson and James Jamerson, minors; that certain funds, amounting to three hundred and thirty-three dollars and thirty-four cents, came into his possession, the joint estate of the two minors; that this money was deposited in a bank to his account as guardian of the two minors jointly; that he drew a check on this joint fund, for the payment of a personal indebtedness, which check was paid by the bank. It will be noted that he was charged with embezzling seventy dollars, the property of Henry Jamerson.

It is claimed that there was a fatal variance in the averment and the evidence, citing Polkinghorne v. State, 7 South. 347, and McDowell v. State, 68 Miss. 348" court="Miss." date_filed="1890-10-15" href="https://app.midpage.ai/document/mcdowell-v-state-7986992?utm_source=webapp" opinion_id="7986992">68 Miss. 348, 8 South. 508. The record does not show that this question was raised in the court below, but is for the first time assigned as error in this court. The error complained of was not made a ground for special exception in the trial court, and it cannot be made here. Section 4936, Code of 1906.

The trial court refused to instruct the jury that each juror should make up his verdict for himself, and should not surrender his own convictions simply because other jurors may entertain a different opinion. There was very little, if any, conflict in the evidence. It was shown that defendant undoubtedly converted the estate of his wards to his own use, and the circumstances are conclusive that the conversion was felonious. The refused instruction merely announces a truism, probably recognized by all intelligent persons, and in the .state of this record we are of opinion that the court’s refusal to grant the instruction was not reversible error.

It is further contended that the court erred in permitting a state’s witness to testify who had remained in the court room during the examination of the defendant. Assuming that the witness had violated the orders of the court, it was within the discretion of the court to punish the witness of the state, and we think the court wisely refused to deprive the state of the witness’s testimony.

Affirmed.