Washington v. State

| Ala. | Dec 15, 1882

SOMEB.YILLE. J.

The indictment is for the embezzlement of an ox, or steer, which the defendant is alleged to have fraudulently converted to his own use, contrary to the provisions of section 4377 of the present Code (of 1876).

We think the court did not err in charging the jury that the offense was a felony. The larceny of an ox or steer, without regard to its value, is made a felony by section 4358 of the Code, punishable by imprisonment in the penitentiary, or by sentence to hard labor for the county, for not less than two, nor more than five years. And the embezzlement of property', under the above section, is required to be punished just as the larceny of it is. — Code, § 4377. It is, in our judgment, immaterial, that the statute against larceny has been amended, since the one against embezzlement was enacted, so as to make that a felony which before may have been only a misdemeanor. It is a plain principle, that statutes may be amended, as well as be repealed, by implication; and it is not essential that the amenda-tory statute should even refer to the acts or sections which they thus operate to amend, in order to be free from constitutional objection. There is no clause in our constitution prohibiting this species of legislation. — Cooley’s Const. Lim. 152.

The objection to the indictment, however, is well taken. The gist of the crime charged is embezzlement by an agent, of property which has come into his possession by virtue of his employment, or agency. — Code, § 4377. The indictment should, therefore, have alleged that the defendant was the servant or agent of some named principal.—Code, 1876, p. 997, Form No. 50; Watson v. State, 70 Ala. 13" court="Ala." date_filed="1881-12-15" href="https://app.midpage.ai/document/watson-v-state-6511208?utm_source=webapp" opinion_id="6511208">70 Ala. 13; Hinderer v. State, 38 Ala. 415" court="Ala." date_filed="1863-01-15" href="https://app.midpage.ai/document/hinderer-v-state-6507057?utm_source=webapp" opinion_id="6507057">38 Ala. 415; Lowenthal v. State, 32 Ala. 589" court="Ala." date_filed="1858-06-15" href="https://app.midpage.ai/document/lowenthal-v-state-6506289?utm_source=webapp" opinion_id="6506289">32 Ala. 589.

It was unnecessary, perhaps, for the indictment to have alleged the ownership of the property embezzled, as a fact separate and distinct from the necessary inference of such ownership, based on the relation of principal and agent, and on the further fact that the property had come into the agent’s or servant’s possession by virtue of his agency' or employment. The safer practice, however, is always to aver such ownership, varying the averments in several counts so as to meet the possibilities of a variance. But, where ownership is averred in such cases, it becomes material, and must be proved.

The defendant, under the proof made, was not the agent or servant of Stickney, who was alleged in the iridictment to be the owner of the property embezzled. Thomas had received the horse from Stickney, with the understanding that he was to pay him '(Stickney) forty-five dollars, or its equivalent. Thomas traded the horse for other property, including the ox or steer in question, which latter animal was placed in defendant’s custody, to be by him delivered to Stickney. The defendant was selected by, and acted for Thomas, who was, therefore, his principal. If the animal had been destroyed by the malice of the agent, or lost through his negligence, it is plain that the loss would be Thomas’, not Stickney’s.—Hinderer’s case, 38 Ala. 415, supra. If Stickney had recognized or indorsed the appointment of the defendant, he might then have been regarded as his agent. The charge of the court touching this aspect of the case was, in our opinion, erroneous.

The judgment must be reversed, and the cause remanded. In the meanwhile the defendant will be retained in custody, until discharged by due course of law.