Abbott v. State

• Decision Date: 14 January 1936
• Docket Number: 6 Div. 749
• Citation: 167 So. 599,27 Ala.App. 87
• Parties: ABBOTT v. STATE.
• Court: Alabama Court of Appeals

167 So. 599

27 Ala.App. 87

ABBOTT v. STATE.

6 Div. 749

Court of Appeals of Alabama

January 14, 1936

Rehearing Denied Feb. 18, 1936

Appeal from Circuit Court, Jefferson County; John P. McCoy, Judge.

E.W Abbott was convicted of embezzlement, and he appeals.

Affirmed.

Certiorari denied by Supreme Court in Abbott v. State (6 Div 931) 167 So. 602.

Beddow, Ray & Jones, of Birmingham, for appellant.

A.A Carmichael, Atty. Gen., and George Lewis Bailes, Sol., and Robt. G. Tate, Deputy Sol., both of Birmingham for the State.

RICE Judge.

The indictment, drawn under Code, § 3966, charged that E.W. Abbott, being at the time the bailee or agent of J.T. Freeman, embezzled or fraudulently converted to his own use five bonds of the Southern Natural Gas Company, a corporation, of the aggregate value of $4,000.

According to the evidence, Abbott received the bonds from Freeman for the sole purpose of exchanging them for other specified securities. The bonds were never returned to Freeman, nor did he receive the securities for which he had stipulated. Two of the bonds had not, at the time of the trial been accounted for, but Freeman traced the other three into the hands of a Mrs. Garner. She testified that at a date shortly after that on which the bonds were turned over to Abbott by Freeman, Abbott negotiated with her for a trade of four Southern Natural Gas bonds for certain real estate theretofore conveyed to her by Abbott; that afterwards one Allbright, an attorney acting for Abbott, came to her home in Saint Clair county, delivered four bonds (three of which were those of Freeman) into her hands and received in return a deed to the realty in question. According to the testimony of both Mrs. Garner and Mr. Allbright, this deed was not made to Abbott as grantee, but to Stuart McKendrick or Mrs. McKendrick. Just who was the grantee is left to rest in uncertainty. The deed was never placed of record and its whereabouts is unaccounted for. The defendant did not testify on the trial, and neither did McKendrick or his wife. Allbright's testimony further went to show that he, as an attorney practicing in Jefferson county, was employed by Abbott to prepare the deed, to deliver the bonds to Mrs. Garner, and to receive from her in return the deed duly executed by herself and her husband. The employment of Allbright and the committing of the bonds to him for the stated purpose took place in Jefferson county.

Embezzlement is purely a statutory offense, not having constituted a crime under the common law. It has been defined as " 'a sort of statutory larceny, committed by servants *** where there is a trust imposed.' *** The gravamen of the offense is that a person who has come rightfully into the possession of personal property as agent, etc., not being capable of committing a trespass, which is a necessary element of larceny, yet fraudulently converts it to his own use, or fraudulently secretes it with intent to convert it to his own use, or the use of another." Knight v. State, 152 Ala. 56, 44 So. 585. It comprehends the actual and lawful possession or custody of the property of another, by virtue of some trust, duty, agency, or employment on the part of the accused, and while so lawfully in possession or custody of such property, it must be unlawfully and fraudulently converted to the use of the person so in possession and custody. It is not necessary to show what has become of the property or that any disposition has been made of it, but only some act by which it was converted to the use of accused or secreted for that purpose. Knight v. State, supra.

The fraudulent conversion denounced by the statute occurs when the use of the property is unlawfully appropriated; it is not dependent upon a converting or changing the property from its form. Thus, when Abbott took three of Freeman's bonds, which had been intrusted to him for the limited purpose specified, and with fraudulent intent turned them over to his own attorney with instructions to dispose of them in a wholly different manner, viz., to give them to Mrs. Garner in exchange for a deed to real estate, the offense was then complete. All this having taken place in Jefferson county, the venue was in Jefferson county where the trial was had. The fact that the actual exchange was made by the attorney in Saint Clair county could not serve to put the venue in that county, the wrongful act having already occurred. Knight v. State, supra.

Defendant elicited a good bit of evidence designed to show that when he received the bonds from Freeman he was acting, not in...