Barr v. State

Decision Date22 January 1914
Docket Number111
Citation65 So. 197,10 Ala.App. 111
CourtAlabama Court of Appeals
PartiesBARR v. STATE.

Rehearing Denied Feb. 11, 1914

Appeal from City Court of Montgomery; Armstead Brown, Judge.

Otto T Barr was convicted of embezzlement of money which came into his possession by virtue of his position as agent, and he appeals. Affirmed.

Tilley & Elmore, of Montgomery, for appellant.

R.C. Brickell, Atty. Gen., W.L. Martin, Asst Atty. Gen., and Rushton, Williams & Crenshaw, of Montgomery for the State.

WALKER P.J.

As stated in the report of this case on a former appeal ( Barr v. State, 7 Ala.App. 96, 61 So. 40), the indictment charged the defendant with the embezzlement of money of the White Company, a corporation organized under the laws of the state of Ohio, which came into his possession by virtue of his employment as agent of said company. It is apparent from the language of the indictment that the offense the commission of which it charges is the one defined by section 6828 of the Code. Willis v. State, 134 Ala 429, 33 So. 226. The evidence offered in support of the charge was as to the fraudulent conversion by the defendant to his own use of money received by him on a sale of an automobile which was the property of the White Company, and which came into the defendant's possession as a sales agent of that company. In behalf of the appellant it is contended that evidence of such a misappropriation by a bailee of "the proceeds of any property sold by him for another" shows the commission of the offense denounced by section 6831 of the Code, and cannot support an indictment which charges the commission of another offense--one embraced by the terms of section 6828 of the Code. This contention cannot be sustained. If there is evidence of the commission by the defendant of an act which has in it all the elements of the offense charged in the indictment, he cannot escape on the ground of a variance between the allegations of the indictment and the evidence offered in support of them, though the same evidence might have been available in support of another criminal charge against him. The existence of every element of the offense which the indictment in this case charges is shown by evidence to the effect that the defendant, being at the time the agent of the corporation named in the indictment, employed to transact business for it, fraudulently converted to his own use money of that corporation which came into his possession by virtue of his employment. Eggleston v. State, 129 Ala. 80, 30 So. 582, 87 Am.St.Rep. 17; Washington v. State, 72 Ala. 272; 15 Cyc. 497. Before the statute which constitutes section 6831 of the Code was materially changed by amendment, it was held that an indictment charging the offense defined by section 6828 of the present Code could not be supported by evidence of the fraudulent conversion by the defendant to his own use of property of another of which the defendant had possession as bailee, unaccompanied by any authority to act as agent of the bailor, the owner of the property, as such evidence showed only the commission of an offense defined by the section of the Code of 1896 (3797), which corresponds with section 6831 of the present Code; and it was said, in effect, in reference to the law as it then stood, that a defendant, indicted under one of these sections, could not be convicted on evidence showing his guilt of an offense denounced by the other. Pullam v. State, 78 Ala. 31, 56 Am.Rep. 21; Watson v. State, 70 Ala. 13, 45 Am.Rep. 70. It is very questionable whether such a statement can properly be made, since by an amendment of the statute section 6831 of the Code makes it a crime for a bailee to embezzle or fraudulently convert to his own use any money or other property "which may have come into his possession by virtue of any bailment for any purpose." It seems that these words bring within the scope of this statute a bailee who is also the authorized agent of the bailor to deal with the subject of the bailment on account of the latter. However that may be, it is plain that a bailee who is such an agent of the bailor is guilty of the offense charged in the indictment in this case if he fraudulently converted to his own use money which came into his possession by virtue of his employment, though that money is the proceeds of property sold by him for another.

The money which there was evidence tending to prove was converted by the defendant to his own use came into his hands as a result of a sale made by him in this state of an automobile which he had for sale for the White Company, an Ohio corporation which at the time of such sale had not, by a compliance with the statutory requirements applicable to such a corporation, become entitled to do business in this state. Such a noncompliance with the requirements of the law by the nondomestic corporation from which the defendant received the property did not change his relation to that property, or to the money into which by the sale it was converted, from that of bailee or agent to that of owner nor did it have the effect of confiscating or so far outlawing the property of such corporation found in this state that a person in possession of it could, with impunity, deal with it or with the proceeds of its sale in such a manner as would have made him guilty of embezzlement if his principal or employer had been under no disability to transact business in the state. The statutes render null and void all contracts, engagements, or undertakings or agreements with, by, or to a nonresident corporation which undertakes to do business in this state when it is not entitled to do so, and make the offending corporation, and any agent, servant, or officer of it liable to specified criminal penalties for violations of the prohibitions as to doing business in this state to which they are subjected. Code, §§ 3642, 3644, 3645, 3653, 6628, 6629. But the statutes do not undertake further to penalize such infractions of their provisions by exposing any property of the offending corporation found in this state to be preyed upon by any one who may choose to despoil it or to appropriate it to his own use, or by suspending...

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8 cases
  • Lacy v. State
    • United States
    • Alabama Court of Appeals
    • February 11, 1915
    ...use, he would be guilty of embezzlement, and this notwithstanding he may have accepted the money with the criminal intent. Barr v. State, 10 Ala.App. 111, 65 So. 197. And if he took the property with a felonious intent carried it away, he would be guilty of larceny. As heretofore stated, as......
  • Citizens' Nat. Bank v. Bucheit
    • United States
    • Alabama Court of Appeals
    • January 11, 1916
    ... ... Plea 2. That at the time of giving said note, payee was a ... corporation domiciled and located in the state of Tennessee; ... that said notes were executed in the state of Alabama, and ... handed to one Downs, the agent and officer of the payee ... agents to a criminal prosecution for transacting business ... without a license. Code 1907,§§ 6628, 6629; Barr v ... State, 10 Ala. App. 111, 65 So. 197 ... It is ... manifest that these regulations have no extraterritorial ... operation, and ... ...
  • Peters v. State
    • United States
    • Alabama Court of Appeals
    • January 12, 1915
    ... ... some other person or persons owned it is immaterial to the ... charge, provided the defendant, as was alleged, came into ... possession of it as their agent, bailee, or trustee and while ... so in possession embezzled it or fraudulently converted it to ... his own use. Barr v. State, 10 Ala.App. 111, 65 So ... 197; Reeves v. State, 95 Ala. 31, 11 So. 158; ... Willis v. State, 134 Ala. 429, 449, 33 So. 226; ... Washington v. State, 72 Ala. 272 ... The ... description of the money alleged to have been embezzled was ... sufficient. Code, § 6843; Walker ... ...
  • Dwyer v. State
    • United States
    • Florida Supreme Court
    • April 5, 1927
    ... ... doubt, that Dwyer was the agent of Driscoll and in that ... capacity received and fraudulently converted the money in ... question, the fact that the evidence may also establish an ... embezzlement in another capacity would not require an ... acquittal. See Barr v. State, 10 Ala. App. 111, 65 ... So. 197; 20 C.J. 481. But the fault with the charge is that ... it tends to assume that Dwyer was in fact Driscoll's ... agent--a fact which is controverted--and does not submit that ... question to the jury for determination ... The ... effect of ... ...
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