Airhart v. State

Decision Date04 December 1979
Docket Number6 Div. 96
Citation388 So.2d 211
PartiesGerald W. AIRHART v. STATE.
CourtAlabama Court of Criminal Appeals

Fred Blanton, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Virginia A. Johnston, Asst. Atty. Gen., for appellee.

TYSON, Judge.

The appellant was indicted and convicted for embezzlement and the trial court fixed his punishment at two years in the state penitentiary. This appeal concerns a variance between the allegation in the indictment and the proof. Based on long standing Alabama law which has been applied to identical facts we hold that appellant's cause must be reversed and remanded.

The state's evidence proved beyond all reasonable doubt that the appellant embezzled a check from his employer. The appellant was an accountant for Johnson and Johnson Sandblasting and Metalizing Company. He was in charge of keeping the books and writing checks to pay bills for the company. On November 22, 1976, the appellant wrote a check for $4,436.52 on a company account. He presented the check to Mr. Winford Johnson, a co-owner of the company, to sign, telling Mr. Johnson that the check was to pay for withholding taxes for employees of the company. The appellant was not authorized to use the check for any purpose other than to make the federal tax deposit.

On November 23 the appellant took that check to the Fairfield branch of Birmingham Trust National Bank and purchased a cashier's check in the amount of $4,436.52. No money changed hands. The cashier's check was made payable to Trussville Motors, Incorporated, where appellant used the check to purchase a 1976 Chevrolet Chevelle automobile.

I

Omitting its formal parts, appellant's indictment reads as follows:

"The grand jury of said County charge that, before the finding of this indictment, Gerald W. Airhart, whose name is to the grand jury otherwise unknown, being at the time the agent, clerk, employee, servant or apprentice of Winford Johnson and George Johnson, did embezzle or fraudulently convert to his own use, or the use of another, or did fraudulently secret with the intent to convert to his own use, or the use of another, Four Thousand Four Hundred Thirty Six Dollars and Fifty Two Cents of the lawful currency of the United States of America, a more particular description and denomination of which is to the grand jury otherwise unknown, which came into his possession as such agent, clerk, employee, servant or apprentice, the personal property of Winford Johnson and George Johnson, against the peace and dignity of the State of Alabama." (Emphasis added.)

The issue thus presented is whether proof that a check was embezzled is sufficient to satisfy the allegation of an indictment charging the embezzlement of "lawful currency." Both Supreme Court and Court of Appeals precedent answer this question in the negative.

In Carr v. State, 104 Ala. 43, 16 So. 155 (1894), the Supreme Court of Alabama held the following:

"If the jury believed this evidence, they could not have found the defendant guilty. Under it, all he ever received from Mrs. Rice was the check for $5,000, and not money or bank notes, as alleged in the first and second counts of the indictment, to the amount of $1,600.90; and under it there was no special deposit by Mrs. Rice of $1,600.90, or any other sum, with the defendant, or with the Tuscumbia Banking Company. It may be that, conceding the truth of this evidence, the defendant would still be guilty of embezzling the check, but that charge is not made in this case . . . .

"Each count of the complaint charges the defendant with having received, in one form or another, money from Mrs. Rice. On one aspect of the evidence, he received only a check from her, directly or indirectly. Obviously, a check is not money; and obviously, also, unless he did receive money of hers, the jury should have acquitted him." (Emphasis added.)

This holding was followed by Judge Bricken, speaking for the Court of Appeals in Pruitt v. State, 21 Ala.App. 113, 105 So. 429 (1925); Brown v. State, 25 Ala.App. 117, 141 So. 725 (1932), and later still in Bauer v. State, 25 Ala.App. 355, 146 So. 539 (1933). In Bauer, supra, Judge Bricken wrote:

"The indictment charged the defendant with the embezzlement of money, not checks, and the inquiry in this connection should have been confined to the question as to whether or not the alleged money came into possession of the defendant as the vice president of the company named; and further, Did he embezzle or fraudulently convert to his own use such money? Certainly if an accused should embezzle a horse, or other property, and afterwards convert the property into money, a prosecution could not be sustained for the embezzlement of money. In this case, the court charged the jury that as a matter of law an indictment charging the embezzlement of money is not sustained by proof of embezzlement of checks only. This is a correct statement of the law, and has been many times so decided." (Emphasis added.)

The holdings in these cases have at no time been overruled. We believe that the reasoning in the above cases is sound and should be followed in the instant case.

Embezzlement is a statutory criminal offense. Knight v. State, 152 Ala. 56, 44 So. 585 (1907); Napier v. State, 337 So.2d 62 (Ala.Cr.App., 1976); Hill v. State, 48 Ala.App. 240, 263 So.2d 696 (1972). The prosecution in the instant case was pursuant to the provisions of Alabama Code, § 13-3-20 (1975). Strict construction under this section must be enforced and applied. Spurlock v. State, 37 Ala.App. 390, 69 So.2d 293 (1953).

See Mr. Justice McCall's thorough discussion of the state's burden of proof in an embezzlement prosecution. 286 Ala. 722, 246 So.2d 483 (1971). Clearly, it must be established what property was embezzled....

To continue reading

Request your trial
11 cases
  • Kelley v. State
    • United States
    • Alabama Court of Criminal Appeals
    • October 6, 1981
    ...v. State, 78 Ala. 31 (1884). It is also an elementary principle of law that an indictment must be proved as it is laid. Airhart v. State, 388 So.2d 211 (Ala.Cr.App.1979), cert. quashed, 388 So.2d 213 (Ala.1980). In other words, in order to prove a prima facie case against appellant, it was ......
  • Hall v. State
    • United States
    • Alabama Court of Criminal Appeals
    • August 14, 2015
    ...and the evidence established "checks," this was a fatal variance.’ Ex parte Airhart, 477 So.2d 979, 980–81 (Ala.1985) ; Airhart v. State, 388 So.2d 211, 212–13 (Ala.Crim.App.), cert. quashed, 388 So.2d 213 (Ala.1980) (proof that a check was embezzled is insufficient to satisfy the allegatio......
  • U.S. v. Fernando, 83-2178
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • October 11, 1984
    ...somewhat analogous criminal statutes as not including checks. State v. Pittman, 9 Ohio St.2d 186, 224 N.E.2d 913 (1967); Airhart v. State, 388 So.2d 211 (Ala.App.1979). Cf. United States v. Smith, 152 F. 542 (W.D.Ky.1907) ("monies, funds and credits" distinguished, money limited to "the cur......
  • Shubert v. State
    • United States
    • Alabama Court of Criminal Appeals
    • April 8, 1986
    ...the evidence established 'checks,' this was a fatal variance." Ex parte Airhart, 477 So.2d 979, 980-81 (Ala.1985); Airhart v. State, 388 So.2d 211, 212-13 (Ala.Cr.App.), cert. quashed, 388 So.2d 213 (Ala.1980) (proof that a check was embezzled is insufficient to satisfy the allegation of an......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT