Lang v. State

Citation97 Ala. 41,12 So. 183
PartiesLANG v. STATE.
Decision Date12 January 1893
CourtSupreme Court of Alabama

Appeal from city court of Montgomery; T. M. Arrington, Judge.

Thomas H. Lang was convicted of embezzlement, and appeals. Reversed.

The appellant was indicted, tried, and convicted for embezzlement, and sentenced to the penitentiary for two years. The indictment contained two counts, and was in the following language: (1) "The grand jury of said county charge that before the finding of this indictment Thomas H Lang, being the agent of the Montgomery Furniture Company, a partnership composed of George Hollander and Ed Hollander did embezzle or fraudulently convert to his own use money to about the amount of two thousand dollars, the personal property of the said Montgomery Furniture Company, a partnership as aforesaid, which said money had come into the possession of the said Lang by virtue of his employment as such agent." (2) "The grand jury of said county further charge that before the finding of this indictment Thomas H. Lang, being the bailee of the Montgomery Furniture Company, a partnership composed of George Hollander and Ed Hollander, did embezzle or fraudulently convert to his own use money to about the amount of two thousand dollars, the personal property of the said Montgomery Furniture Company, a partnership as aforesaid, which said money had come into the possession of the said Lang by virtue of a bailment for the mutual benefit of the bailor, the said Montgomery Furniture Company, a partnership as aforesaid, and of the bailee, the said Lang, against the peace and dignity of the state of Alabama." The defendant demurred to the second count upon the ground that the said count charges no offense against the criminal laws of this state. The court overruled this demurrer, and the defendant excepted. The defendant also moved the court in arrest of judgment, on the ground that each count of the indictment is defective, in that neither charges affirmatively that the defendant was the agent or bailee of the Montgomery Furniture Company. The court overruled this motion.

The testimony for the state tended to show that the defendant was the agent of the Montgomery Furniture Company, acting in the capacity of general manager for the company's business and that the owners of the company had practically nothing to do with the conduct of the business affairs of said company and that all was intrusted to him. There was introduced evidence through the "blotter" and the cash book of the company showing a discrepancy between the two books, and tending to show a shortage in the defendant's accounts with the company. There was also testimony by the state that the defendant admitted his shortage to be $738.15. The state introduced one Lydia Campbell, who testified that she was indebted to the Montgomery Furniture Company to the amount of $26 for goods purchased, and had been given a receipt for the amount of the account by Thomas H. Lang. This witness further swore that she had not paid Lang any money, but that the receipt was given in payment of a board bill contracted at her house. James O'Hara testified as a witness for the state that he had paid the Montgomery Furniture Company on October 4, 1889, a check for $215 for goods bought from said company. And the state introduced further testimony tending to show that the check given by O'Hara was indorsed in the handwriting of the defendant, but that the books of the company did not show that amount turned in to the company. The state introduced further testimony tending to show a contract made between one Wright and J. T. Turner and the defendant to lease a barber-shop outfit, said contract giving Wright the privilege of purchasing the same. The consideration for the lease was $1,200, while the books of the company show an entry of $600 therefor. Each separate portion of the testimony introduced by the state, as above set out, was separately objected to by the defendant; but, upon the state's counsel announcing to the court that it was introduced for the purpose of showing a scienter, the court overruled each separate objection of the defendant to the several portions of the state's testimony, and to each of these rulings the defendant separately excepted. Upon the introduction of all the evidence the defendant requested the court to give the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "The burden of proof is on the person making the charge of embezzlement to sustain it. It is not incumbent on the other party to show what has become of the money, even though it be traced to his hands." (2) "The best evidence of which the case in its nature is susceptible must always be produced, and the declaration of the owners of the money is the best evidence to show nonconsent to the conversion of the money, and unless it is shown to the satisfaction of the jury beyond all reasonable doubt that the defendant received the money, to wit, $36, on the 4th of April, 1891, and that he did not pay over or account to the partnership of George and Ed Hollander for the same, then he cannot be convicted under this indictment." (3) "The failure of the state to offer any evidence or proof as to the amount or amounts of money paid by Lang to George and Ed Hollander, the partnership mentioned in the indictment, is a circumstance to be looked at by the jury in determining whether or not the money the defendant was charged with embezzling was paid over or accounted for to the partnership composed of George and Ed Hollander."

H. C. Bullock, J. G. Finlay, and Thos. H. Watts, for appellant.

Wm. L. Martin, Atty. Gen., for the State.

STONE C.J.

The defendant was indicted for the crime of embezzlement, the sum charged to have been...

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20 cases
  • Powell v. State
    • United States
    • Alabama Supreme Court
    • March 24, 1932
    ...v. State, 16 Ala. App. 427, 78 So. 467; Leonard v. State, 96 Ala. 108, 11 So. 307; Walker v. State, 96 Ala. 53, 11 So. 401; Lang v. State, 97 Ala. 41, 12 So. 183; Reeves State, 95 Ala. 31, 11 So. 158; Huffman v. State, 89 Ala. 33, 8 So. 28; Bailey v. State, 99 Ala. 143, 13 So. 566; Coleman ......
  • Greene v. United States
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • June 3, 1907
    ... ... defenses had no application to the third indictment. The ... defenses were presented by pleas, which, so far as is ... necessary to state, were, in substance, that they had lately ... been in the Dominion of Canada and had been surrendered ... [154 F. 404] ... to the United States ... United ... States, 174 U.S. 47, 19 Sup.Ct. 574, 43 L.Ed. 890; ... State v. Thomas, 64 N.C. 74; Lang v. State, ... 97 Ala. 41, 12 So. 183; Commonwealth v. Clark, 145 ... Mass. 251, 13 N.E. 888; Shinn v. Commonwealth, 32 ... Grat. (Va.) 899; ... ...
  • Lacy v. State
    • United States
    • Alabama Court of Appeals
    • February 11, 1915
    ... ... by him for a specified purpose or to be delivered to another ... officer of the state, for the use of the state, although the ... officer had no right to receive it, such officer would be a ... bailee of the state and liable as such. Lang v ... State, 97 Ala. 41, 12 So. 183; Schouler on Bailments, §§ ... 2-4; Compton v. State, 102 Ark. 213, 143 S.W. 897, ... 903; Storms v. State, 81 Ark. 25, 98 S.W. 678; ... U.S. v. Thomas, 15 Wall. (82 U.S.) 344, 21 L.Ed. 89; ... York County v. Watson, 15 S.C. 1, 40 Am.Rep. 678; ... ...
  • Doss v. State
    • United States
    • Alabama Supreme Court
    • June 27, 1929
    ... ... necessary to be proved to secure a conviction. Schwartz ... v. State, 37 Ala. 460; Smith v. State, 63 Ala ... 55; Whitehead v. State, 16 Ala. App. 427, 78 So ... 467; Leonard v. State, 96 Ala. 108, 11 So. 307; ... Walker v. State, 96 Ala. 53, 11 So. 401; Lang v ... State, 97 Ala. 41, 12 So. 183; Reeves v. State, ... 95 Ala. 31, 11 So. 158; Huffman v. State, 89 Ala ... 33, 8 So. 28; Bailey v. State, 99 Ala. 145, 13 So ... 566; Coleman v. State, 150 Ala. 64, 43 So. 715 ... The ... case of Bryan v. State, 45 Ala. 86, cited by the ... ...
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