Barry v. State

• Decision Date: 08 January 1940
• Docket Number: 33580
• Citation: 192 So. 841,187 Miss. 221
• Court: Mississippi Supreme Court
• Parties: BARRY v. STATE

192 So. 841

187 Miss. 221

BARRY v. STATE

No. 33580

Supreme Court of Mississippi, Division B

January 8, 1940

APPEAL from the circuit court of Jones county HON.W. J. PACK, Judge.

John D Barry was convicted of embezzlement, and he appeals. Judgment reversed, and case remanded for a new trial.

Reversed and remanded.

Hilton Berry & Kendall, of Jackson, and Martin & Farr, of Prentiss for appellant.

The jury simply found appellant was short in some of his accounts and the evidence and the law given the jury did not warrant the judgment and sentence for embezzlement and the evidence is insufficient.

We most respectfully submit that the case as the jurors were bound to have understood it from the voir dire and the evidence as to the shortage was a case sounding in civil liability for the amount claimed. We most respectfully submit that this is not the criminal law in Mississippi as between private parties for embezzlement. It may be the law in Mississippi where a public officer is involved and who either fails or refuses to turn over public money when required so to do by law and where he offers no reasonable explanation of the default, but the law, as we understand it, is different between private parties. It was necessary, as we view it, for the state, not only to prove beyond a reasonable doubt that there was a shortage, and where, as here, this shortage was undertaken to be established by circumstantial evidence along with other evidence, it was also necessary, and the burden was on the state to show, that there was other reasonable way by which the shortage in the books could be accounted for except through appellant's wrong and this wrong must be of the criminal sort, with the felonious intent to steal the money.

An unexplained failure to pay over the money which the accused is charged with having embezzled does not of itself raise a presumption of a felonious appropriation sufficient to convict.

State v. O'Kean, 35 La. Ann. 901; 2 Bishop's New Criminal Law, Sec. 376; Rex v. Hodgson, 3 C. & P. 422; Snell v. State, 50 Ga. 219.

The indictment must allege "with intent to injure and defraud."

6 Am. & Eng. Enc. 496, citing State v. Lyon, 45, N.J.L. (16 Vr.) 272; State v. Hill, 91 N.C. 561, 7 Cr. L. Mag. 795; U.S. v. Voorhees, 9 F. 143, 3 Cr. L. Mag. 259; 12 Rep. 713.

The jury simply found the defendant guilty of a shortage and nothing more.

Taylor v. Standard Oil Co., 186 So. 294.

We most respectfully submit that it is plain in this case that the jury was not only sworn to simply convict on a finding of a shortage, but the law explaining the real gist of the case was refused appellant and the proof fails to show that furtively and with felonious intent appellant converted the money to his own use. Consequently it is shown also that the state failed to prove the corpus delicti.

The indictment fails to allege any intent to steal. The indictment is bad and subject to challenge here.

Cook v. State, 72 Miss. 517, 17 So. 228; Taylor v. State, 74 Miss. 544, 21 So. 129; Conn v. Libby (Mass.), 11 Met. 64, 45 Am. Dec. 185.

We most respectfully submit that it was necessary for the state to show, not only beyond a reasonable doubt, but to the exclusion of every other hypothesis, not only that Barry did not pay this money into the company, but that he appropriated it to his own use with the wilful and felonious intent to steal it. We submit the state has done neither.

The lower court was in error in refusing defendant the right to lay predicate to show bias, interest, and feeling of J. H. Walker.

Hardy v. State, 143 Miss. 352, 108 So. 727; Mackmasters v. State, 81 Miss. 374; Cody v. State, 167 Miss. 150, 148 So. 627; Newcomb v. State, 37 Miss. 383; Miss. Ice & Utilities Co. v. Pearce, 161 Miss. 252, 134 So. 164.

The lower court was in error in refusing to allow Mrs. Barry's testimony as to conversation with Mrs. Walker to go to jury.

While we know that this court always has a great regard for the verdict of a jury, it will not hesitate to take from it the verdict when the evidence is insufficient or where the accused has not had that fair and impartial trial which is guaranteed him by law.

165 Miss 207, 147 So. 481; 117 Miss. 311, 78 So. 182; 126 Miss. 94, 88 So. 498; 153 Miss. 357, 120 So. 918; 153 Miss. 709, 122 So. 189; 158 Miss. 266, 130 So. 150.

W. D. Conn, Jr., Assistant Attorney-General for the State.

The evidence shows an embezzlement rather than a mere shortage in some accounts.

2 Wharton's Cr. L., Sec. 1279, p. 1592; Davis v. State, 108 Miss. 710, 67 So. 178.

The indictment correctly charges the offense of embezzlement.

Davis v. State, 108 Miss. 710, 67 So. 178.

It is not permissible to show that someone other than the accused had both the opportunity and motive to commit the offense, or to show that someone else other than accused was more probably guilty.

Moore v. State, 179 Miss. 268, 175 So. 183.

The testimony with reference to what Mrs. J. H. Walker had told accused was hearsay and was properly disallowed.

There is not enough of the voir dire examination of the jury to determine whether the jury was committed to find accused guilty if the state proved merely a shortage. On the other hand, the instructions of the court clearly show that this was not the theory on which the case was tried.

Argued orally by G. L. Martin, and Ovie L. Berry, for appellant, and by W. D. Conn, Jr., for the State.

OPINION

Ethridge, P. J.

John D. Barry was indicted, tried, and convicted of the crime of embezzlement and sentenced to serve five years in the State Penitentiary, from which judgment he appeals here. The indictment was found under the provisions of Section 889, of the Code of 1930, and it reads as follows: "that John D. Barry on the 23rd day of May, 1938, in the county and district aforesaid being then and there employed as a salesman and agent of A. B. Black and J. H. Walker, doing business under the trade name of Laurel Wholesale Grocery Company, a co-partnership composed of the said A. B. Black and J. H. Walker, and in such capacity as salesman and agent of said co-partnership, was intrusted to collect and receive and have the sum of $ 3669.41, good and lawful money of the United States of America, of the value of $ 3669.41, of the personal property of the said A. B. Black and J. H. Walker, co-partners, doing business under the trade name as aforesaid, and being so employed as aforesaid, the said John D. Barry, by virtue of said employment, then and there did collect, receive and take into his possession and have in his possession the sum of $ 3669.41, good and lawful money of the United States of America, of the value of $ 3669.41, the personal property of the said A. B. Black and J. H. Walker, co-partners, doing business under the trade name of Laurel Wholesale Grocery Company, for and on account of the said A. B. Black, and J. H. Walker, co-partners, doing business under the trade name of Laurel Wholesale Grocery Company, the employers of the said Barry, as aforesaid, and the said John D. Barry, at the time and place aforesaid, fraudulently and feloniously did take, make way with, secrete, embezzle and convert to his own use without the consent of the said A. B. Black, and J. H. Walker, co-partners, doing business under the trade name aforesaid, his employers as aforesaid, the said sum of $ 3669.41, good and lawful money of the United States of America, of the value of $ 3669.41, of the personal property of the said A. B. Black and J. H. Walker, co-partners, doing business under the trade name aforesaid, which said sum of money had come into his possession, and under his care and control, by virtue of his employment as aforesaid, and that the said John D. Barry did then and there fraudulently and feloniously embezzle and convert to his own use the said money aforesaid, in the said sum and of the value aforesaid, and of the personal property of the said A. D. Black and J. H. Walker, co-partners doing business under the trade name of Laurel Wholesale Grocery Company, as aforesaid, against the peace and dignity of the State of Mississippi."

There was no demurrer to the indictment, but there was a motion for a bill of particulars, but no ruling appears in the record as to the said motion for bill of particulars, and no bill of particulars appears in the record. It has been held, however, by this Court that Section 555 of the Code in reference to a bill of particulars is not applicable to a criminal case. It will further be noted that, under Section 1194, the prosecution for embezzlement is not limited to a two-year period, but is one of the excepted cases. The testimony took a wide range and covered many transactions involving various sums of money alleged to have been collected and unaccounted for.

During the empaneling of the jury the district attorney in examining the jurors on their voir dires stated: "Now Mr. Mack, I believe I was speaking to you, but for the benefit of all you men, if when you take all the testimony and you reach the conclusion, believe beyond a reasonable doubt that John Barry, the defendant in this case, has received a certain sum of money from the customers of the Laurel Wholesale Grocery Company, for the benefit of that company, and then take the other side and find beyond a reasonable doubt that he has not turned that much money over to the Company, then of course you realize a shortage exists, and it is for the existence of that shortage that this prosecution is instituted--now if you believe beyond a reasonable doubt--.

"Counsel for the defendant: We object to that statement of counsel before the jury as being improper on the voir dire examination.

"By The Court. Overruled.

"Q. If you believe beyond a reasonable doubt from the...