33 So. 226 (Ala. 1902), Willis v. State

Citation:33 So. 226, 134 Ala. 429
Opinion Judge:TYSON, J.
Party Name:WILLIS v. STATE. [FNa1]
Attorney:Boykin & Lee and P. E. Culli, for appellant. Chas. G. Brown, Atty. Gen., for the State.
Case Date:June 12, 1902
Court:Supreme Court of Alabama
 
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Page 226

33 So. 226 (Ala. 1902)

134 Ala. 429

WILLIS

v.

STATE. [FNa1]

Supreme Court of Alabama

June 12, 1902

Appeal from circuit court, Cherokee county; J. A. Bilbro, Judge.

Clarence G. Willis was convicted of embezzlement, and appeals. Reversed.

The appellant in this case was tried and convicted under the following indictment: "The grand jury of said county charge that, before the finding of this indictment, Clarence G. Willis, an agent of the Southern Railway Company, a corporation under the laws of the state of Virginia, embezzled or fraudulently converted to his own use money, to about the amount of three hundred and six dollars, which came into his possession by virtue of his employment as such agent, against the peace and dignity of the state of Alabama." To this indictment the defendant demurred upon the following grounds: "(1) The indictment charges the defendant with embezzlement of about three hundred and six dollars, but fails to allege the ownership of said property; (2) because the indictment fails to charge that the money which is alleged to be embezzled was the property of the Southern Railway Company." This demurrer was overruled, and the defendant duly excepted.

J. W. Hooks, who was introduced as a witness for the state, was the traveling auditor of the Southern Railway Company. He testified that he first met the defendant some time in September, 1899, at which time defendant was in charge of the company's office at Rock Run, Cherokee county, Ala., which is a station on the said company's line, and that the defendant was acting as agent for said company, and in charge of the company's office at that station. Some time in December, 1899, the defendant took a vacation of about 30 days. That in March, 1900, the defendant was promoted to the company's station at Oxford, Ala., and in the fall of 1900 was promoted to the company's station at Talladega. The witness Hooks also testified to the following facts: While the defendant was acting agent for the Rock Run station, he was required to keep the following books: A freight-received book, in which he was required to enter a record of the freights received, showing the original waybill number, the station pro number, the weight of the freight, and the charges to be collected; a cash book, in which he was required to keep a record of the collections of freight moneys, ticket sales, and all other revenues received by the defendant for the Southern Railway Company; and he was required to give a bill of lading for all freights shipped from Rock Run to other points, which waybill should accompany freights. Defendant was required to give a receipt for all freight charges collected, due the Southern Railway Company, delivered at his station. This receipt is called an "expense bill," and is made from a printed form furnished by the company, showing articles of freight delivered and the amount of the freight charged. That the traveling auditor examined the books of the defendant while in charge of the Rock Run station, and they were always correct. The Rock Run station was one of the heaviest one-man stations on the company's line, and the revenues amounted to from $1,200 to $2,500 per month. The principal consignee at the Rock Run station was the Bass Foundry & Machine Works. The defendant was authorized to make weekly settlements for freights delivered to these machine works. The machine works settled the freight bills due the railway company with checks made payable to the order of the Southern Railway Company. These checks were not made payable to the agent. While Hooks was being examined by the state, he was shown a lot of expense bills, which he said were signed by the defendant, and in his handwriting. All of these expense bills that were shown witness were procured from the Bass Foundry & Machine Works, and no one else, and had been turned over to witness by those people. Witness did not know if freight had been delivered on the expense bills, but they were made out on the forms furnished by the company for the collection of freights, and all showed that they were receipts given to the Bass Foundry & Machine Works for money paid on freights by them to the railway company. These receipts were dated at Rock Run, Ala. The state introduced one of said expense bills, showing the collection from said machine works of $7.16 freight due the Southern Railroad Company. That the defendant entered this collection in the cash book as $6.45, and that it was collected January 10, 1898, and a remittance was made to the company on the same day of $228.42, which included only $6.45 of this expense bill. The state then offered expense bill No. 2. The defendant did not object to expense bill No. 2 if offered for the purpose of showing the defendant's intent in dealing with the funds of his principal. The court held that the state was not required to elect, and that expense bill No. 2 was competent and relevant evidence. To this ruling of the court, the defendant excepted. The state then introduced, over the objection of the defendant, the following expense bill, No. 2, showing a collection from said machine works of $3 freight due the Southern Railway Company; and witness Hooks testified that the cash book did not show an entry of this collection. The collection was made on January 17, 1898, and on that day $182.77 was remitted to the company by the defendant, but said remittance did not include said sum of $3. The defendant then moved the court to require the state to elect whether it would prosecute as to expense bill No. 1 or No. 2, but the court overruled the defendant's motion, and defendant excepted. The state then offered expense bill No. 3 as follows: No. 3. Jan. 10, 1898, showing a collection from said machine works of 91 cents freight due the railway company, which expense bill was not entered on cash book, but a remittance was made to the company of $227.81 on the 24th day of January, 1898, which did not include this expense bill. The defendant objected to the introduction of this expense in evidence, except for the purpose of showing the intent of the defendant, because the state had elected to prosecute on expense bills Nos. 1 and 2; and because the evidence showed that, in dealing with expense bills, Nos. 1 and 2 were complete transactions, three remittances having been made by the defendant to the company; and because the evidence was illegal, irrelevant, and immaterial. The court overruled the objections, and the defendant then and there excepted. The defendant again moved the court to require the state to elect as to which of said three transactions it would prosecute the defendant, but the court overruled the defendant's motion, and defendant excepted. The state then introduced the following expense bills: No. 4, showing a collection on January 28, 1898, of $63 freight collected for the Southern Railway Company; No. 5 on the same day, showing a collection of $5.79 freight for the Southern Railway Company; No. 6, dated January 28, 1898, showing a collection of $6.45 freight for the Southern Railway Company; No. 7, dated January 29, 1898, showing a collection of $3.70 due the Southern Railway Company for freight. Witness Hooks stated that the cash book did not show any entry of the above four expense bills, but that a remittance was made to the company of $312.14 on the 31st day of January, 1898, which did not include these expense bills. The defendant then and there moved the court to exclude the four last-named expense bills, except for the purpose of showing the intent of the defendant, on the same grounds urged as to expense bills numbered 1, 2, and 3. The court refused to exclude the evidence as requested by the defendant, and the defendant then and there excepted.

To each of the following expense bills introduced, the defendant made the same objection, separately and severally as to the expense bills numbered 1 to 7, inclusive, which the court overruled; and the defendant then and there excepted. No. 8, which showed a collection by the defendant on February 1, 1898, of $3.28 freight due the Southern Railway Company, and witness stated that this collection was not shown by the cash book. Expense bill No. 9 was then introduced, which showed a collection by the defendant of $7.73 freight due the railway company on February 4, 1898, and that the evidence showed this expense bill was entered as $4.63, and on February 7, 1898, a remittance of $220.50 was made by the defendant to the Southern Railway Company, but said remittance did not include the collection of $3.28 of February 1, 1898, and only $4.63 of the collection made on February 4, 1898. The defendant then asked the court to exclude all the evidence of expense bills introduced subsequent to the 31st day of January, 1898, at which time the witness had testified the defendant had remitted to the company $312.14, purporting to cover the amount then due the company, except in so far as the evidence was offered to show the intent of the defendant, and to aid the jury in determining whether the defendant embezzled any part of the money of the company as shown by expense bills of prior date. The court refused to exclude the evidence as requested by the defendant, and the defendant then and there excepted. The state then offered expense bill No. 10, of February 8, 1898, showing a collection of freight due the company of $1.28; and witness stated cash book did not show this collection, but a remittance was made on February 14th, of $325.38, which did not include the collection of $1.28. The defendant interposed the same objection to the introduction of the last-named expense bill as was made to expense bills shown above, and moved the court to exclude the evidence, as this was a complete and separate transaction. The court refused, and the defendant...

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