174 So. 2d 345 | Miss. | 1965
The appellant, W. P. Tuttle, was convicted in the Circuit Court of Harrison County, Mississippi, for the crime of embezzlement and was sentenced to pay a fine of $500.
In 1960 W. P. Tuttle organized Southern Savings & Loan Association at Gulfport. He was both the president of the corporation and was also a licensed broker of stocks. John Gardner, a lawyer, bought and was delivered 200 shares of stock in the corporation under a subscription contract in which he dealt directly with Tuttle.
When Gardner tendered the remaining $350, due on the subscriptions, Tuttle refused to deliver the stock, saying- that he could not do so. He did not deliver the stock nor did he pay Gardner the money back. Consequently Gardner sued on the bond, deposited with the Secretary of State, to compel the delivery of the stock, or alternatively, to have his money repaid. The court ordered Tuttle to deliver the stock in thirty days, or, failing to do so, he should repay the money. The court order, not having been complied with, the Secretary of State was required to cash the bonds and make restitution to Gardner; and that order was obeyed.
It was shown that Tuttle used a trade name of W. P. Tuttle & Company, and that Gardner, at no time, dealt with anybody in connection with these stock transactions except Tuttle. The checks, which Gardner gave, were in payment for the stock. He was led to believe and thought that Tuttle was the sole proprietor of W. P. Tuttle & Company. His understanding was that he was buying the stock directly from the company; and that Tuttle was taking his money and would deliver the stock to him. In other words, Tuttle was to use this money solely for the purpose of paying Southern Savings & Loan Association for the stocks that Gardner was to receive in the organization; and the checks were for the purpose of paying for his shares of stock.
For the defense, Mrs. Virginia Rice, Tuttle’s former secretary, testified that these stock purchases, aggregat
Henry Leroy Webb, secretary of the company, testified that, according to the books, Tuttle still had 5,500 shares outstanding in his name. The original issue to Tuttle had been 20,000 shares.
The appellant did not testify.
On rebuttal, Gardner testified that he had already paid to Tuttle $2,650 and tendered the balance of $350 when he learned of any question about this stock.
The appellant has assigned several alleged errors. He contends that the relationship between him and Gardner was that of creditor and debtor; that Gardner did not pay his obligations, on deferred payments, in accordance with his promise; and that he had the right to have full payment, as provided in the contract, before delivering the stock. Besides, he also contends that, in order to constitute the crime of embezzlement, the appellant must have procured the subject property in a trust, fiduciary, or agency relationship, and that the evidence failed to show such a relationship.
The trouble about these positions is that Tuttle, at no time, during their relations, raised any question at the time of payments. He accepted Gardner’s payments when and as they were paid without a murmur. When demand was made upon him to deliver the stock on payment of the remaining $350 still due, he made no excuse for not delivering, except that “he said that he could not deliver the stock.”
These contentions also fly in the face of the evidence in the case, which is directly to the contrary. As shown by the testimony of Gardner, he paid this money to Tuttle on the understanding that it was to be used for the payment of stock purchased. But when Gardner had complied with the contract, Tuttle refused to deliver the stock. Besides, the appellant did not even testify, nor did he offer evidence in conflict with the state’s evidence. The prohibition against adverse comment and inference does not protect a defendant from the probative force of the evidence against him. Dealing with the failure of a defendant to testify, 1 Wharton’s Criminal Evidence, sec. 146 at page 277 (12th ed. 1955), well says: “If a defendant does not attempt to rebut incriminating facts he cannot, merely by remaining silent, escape the natural and reasonable inferences deducible from such facts. For instance, if in a case of larceny the theft and unexplained or unsatisfactorily explained recent possession of the stolen property of the accused are shown, he cannot avoid the natural inference, deducible from such facts, that he is the thief, by failure or refusal to testify.”
In Harvey v. State, 188 Miss. 428, 194 So. 925 (1940), the appellants were convicted on a charge of grand
It was urged that the evidence was insufficient to show that either of the Harveys stole the clothing from Man-gum’s store, but mention was made of the fact that one or more clerks, working in the store that day, were not introduced to testify affirmatively that the appellant did not buy the clothing from them. When Mangum’s clothing was identified, there was no evidence of the sale of these articles. The opinion finally said at page 434: “While a defendant is not called on to testify in a case if he does not desire to do so, yet the circum
The evidence of Mrs. Rice tended to show that the appellant was merely selling his own property. But the evidence of Gardner was to the effect that he paid the money to Tuttle, who, in turn, was to deliver the stock to him. This made a question for the jury, the trier of facts; and it was fully warranted from Gardner’s evidence, together with the other circumstances, to find guilt beyond a reasonable doubt.
Affirmed.