Adams v. State
Citation | 189 So.2d 354,43 Ala.App. 281 |
Decision Date | 30 June 1966 |
Docket Number | 3 Div. 172 |
Parties | John L. ADAMS v. STATE. |
Court | Alabama Court of Appeals |
L. H. Walden, Montgomery, for appellant.
Richmond M. Flowers, Atty. Gen., and John C. Tyson, III, Asst. Atty. Gen., for the State.
This appeal was submitted without oral argument on April 22, 1965.
Adams stands convicted on six counts of embezzling, in all some $16,600, from Mrs. Flora R. Thorpe. After pronouncement of verdict, allocutus and adjudication of guilty, the trial judge sentenced Adams to ten years imprisonment. Code 1940, T. 14, § 126, as amended, and § 133.
That Adams and Mrs. Thorpe were partners and hence embezzlement could not legally occur in such a relationship is the sole point which Adams advances in brief. Anno. 17 A.L.R. 982.
Adams chose not to take the stand. All the evidence was adduced through prosecution's witnesses.
The indictment came on for trial May 13, 1964, at which time Mrs. Thorpe was 88 years old.
She testified that, from October 7, 1960, through November 11, 1961, she cashed some twenty-five checks payable, or endorsed over, to her. The proceeds, $52,830, she turned over to Adams.
Her description of the purpose of these transfers was vague:
'A He just borrowed it as a loan when I first began trading with him.
'Q Now, then as you got on down there, did you have any understanding as to what he was to do with the money?
'A Not a specific thing.
'A I didn't give it to him to throw away, but I gave it to him to use at his discretion.
'Q You gave it into his custody to be used and then returned to you?
'A Yes, sir.
'Q Was it to make money for you?
'A I beg your pardon.
'A Why, he expected to make some money out of it.
'A Well, when he first began getting it, it was helping him in some trucking concern.
'Q Was that the Yellow Transit Company?
'Q Now, Mrs. Thorpe, after these checks began in 1961 in June, was that the Yellow Transit Company at that time?
'A I couldn't answer that correctly.
'A I didn't tell him--
'Q Did he tell you what he was going to do with your money?
'A He was going to invest it in whatever business he could look to at that time.
'Q And was he then to return it to you?
'A Why, of course, he was to return it to me.
'A Yes, I have received some.
'Q How much have you received back?
'A I couldn't tell you that.
'Q Have you received as much as $100.00?
'A I could almost say that I have.
'A Mr. who?
'Q Mr. Beaman.
'A Yes, sir.'
In contrast, on cross-examination, Mrs. Thorpe testified:
'Q Mrs. Thorpe, was there a partnership arrangement with you and Mr. Adams?
'A I didn't understand you.
'Q Did you have partnership arrangements with Mr. Adams?
'A I did not draw up any papers, but there was an agreement that he would have a partnership.
'Q There was an agreement that he was to be your partner? Is it true that you didn't want your name--
'A I wanted a silent partner, I don't know what that means but I didn't want to have anything of business to do with it, I didn't want to be bothered with the details of it, I wanted to have confidence in the man that I was dealing with that I didn't have to watch every dot of the I and a crossing of the T's.
'Q Is it true that you wanted John L. Adams to use other names than your name in this business?
'MR. HARTLEY: Now, we object if the Court please. The agreement about the partnership we have no objection, 'other names', we object to.
'Q Did you want your name used in the partnership?
'A I don't know what you mean by silent partnership, but I just did not want to be known in the partnership.
'Q You did not want to be known in the partnership?
'A No.
'Q Is it true that under this agreement you would furnish capital, meaning money and finances and that you expected 50 percent of the net profit?
'A It was never a case of expectation, he felt so grateful that I was helping them in this situation, he said, 'Well, I'll just give you half of it.' He said, 'To be perfectly frank with you I feel like you ought to have all of it.' And he furnished a great deal of the capital himself.
'Q He furnished capital, and did he also furnish his services as manager and operator of that business?
'A Yes, sir.'
Mrs. Thorpe and Adams went to meet Mr. Beaman. She had received a telegram which read:
She gave the original of the telegram to Adams.
An accountant and an attorney went to Atlanta with Mrs. Thorpe in response to the telegram. No one ever saw Beaman.
Part of the circuit court's oral charge to the jury reads:
The exception which Adams claims 'protected the record' for him on this point appears thus:
'And I further except to this further charge 'in this case Mrs. Thorpe gave the money to the defendant, Adams, for partnership purposes and instead of using the funds for partnership purposes Adams fraudulently converted the same to his own use, that would be embezzlement.'
This court, in Wall v. State, 2 Ala.App. 157, 56 So. 57, said:
* * *'
In Indemnity Ins. Co. of North America v. Holiway, 233 Ala. 100, 170 So. 329, Foster, J., says:
* * *'
Demand for return is no condition precedent to showing embezzlement a statutory crime which ...
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