Carr v. State

• Decision Date: 09 August 1894
• Docket Number: 258.
• Citation: 16 So. 155,104 Ala. 43
• Parties: CARR v. STATE.
• Court: Alabama Supreme Court

16 So. 155

104 Ala. 43

CARR v. STATE.

No. 258.

Supreme Court of Alabama

August 9, 1894

Appeal from district court, Colbert county; W. P. Chitwood, Judge.

Hinton E. Carr was convicted of embezzlement, and appeals. Reversed.

The plea to the jurisdiction, and to the demand by the defendant that the juror Neff be challenged for cause, are the same as contained in the statement of facts in the case of Carr v. State (Ala.) 16 So. 150. After having challenged the said Neff peremptorily, the defendant's challenges were exhausted, and he demanded to be allowed the privilege of challenging peremptorily one Stout, who was put upon him as a juror. The court refused to allow this challenge, and the defendant duly excepted.

The state introduced evidence tending to show that Mrs. Rice received a check or certificate from an order of which her husband was, in his lifetime, a member, for the insurance on his life, amounting to $5,000; that she took this check to appellant, at his bank in Tuscumbia, and told him she desired the money gotten for it, and placed in his bank as a special deposit; that he told her it was good, and that if she would deposit the money with his bank he would let her have what money she needed, and pay her interest on the deposit; and that after her expressed determination to leave it with him only as a special deposit, so that she could get her money when she wanted it, he received the certificate, sent it forward for collection, informed her that its proceeds had been received by him on the 29th of April, 1893, and charged her with the cost of its collection. It seems that he again endeavored to induce her to make it a general deposit, but Mrs. Rice, after telling him of some recent losses she had sustained in some deposits she had made in a bank at Florence, declined to leave it with him as a general deposit. To this he acceded, and then prepared a draft for her for some money she wished to then use, drawing on her funds by the designation of "special deposit," and explained to her that by her drafts so designated the employés of the bank would, in his absence, understand from what money her drafts were to be paid. At the time of the said deposit, Mrs Rice was given a pass book upon which was marked "Special Deposit." Subsequent to the making of said deposit, there was drawn out, on the account of Mrs. Rice all of the money she had deposited, except $1,600.90, which was the amount in the hands of the Tuscumbia Banking Company at the time of their failure. The facts showing that the Tuscumbia Banking Company was a firm composed of the defendant, Hinton E. Carr, and his wife, and that they had failed on June 8, 1893, are substantially the same in this case as in the case of Carr v. State, supra. The defendant denied having embezzled the money as charged in the indictment, and his contention, and the facts in reference thereto, are sufficiently stated in the opinion.

The court, ex mero motu, charged the jury in writing as follows (a) "This is a statutory offense, and there are several statutes on the subject. There are three counts, or ways of stating the charge, in this indictment. The first and second counts are under section 3795 of the Code, which reads as follows, to wit: 'Any officer, agent, or clerk of any incorporated company or municipality, corporation, or clerk agent, servant or apprentice of any private person or persons, who embezzles or fraudulently converts to his own use or fraudulently secretes with intent to convert to his own use, any money or property which has come into his possession by virtue of his office, or employment, must be punished on conviction as if he had stolen it.' Now before there can be a conviction under these two counts, and under section 3795 of the Code, under this indictment, these facts must be established to your satisfaction beyond a reasonable doubt: (1) That the defendant was the agent of Mrs. Mariah E. Rice; (2) that the money or bank notes of Mrs Mariah E. Rice came into his possession by virtue of his office,-employment; (3) that he embezzled it or fraudulently converted it to his own use (the money or bank notes), and, further, that the offense, if any, was committed in this county within three years before the finding of this indictment." (b) "The third count in the indictment is under section 3797 of the Code. That statute reads as follows: 'Any private banker or commission merchant, factor, broker, attorney, bailee or other agent who embezzles or fraudulently converts to his own use, or fraudulently secretes with intent to convert to his own use, any money, property or effects deposited with him or the proceeds of any property sold by him for another, must be punished, on conviction, as if he had stolen it.' Under this count of this indictment under this statute, in order to convict under it, three facts must be proven to your satisfaction beyond a reasonable doubt: (1) The party accused must be a private banker, commission merchant, factor, broker, attorney, bailee, or other agent; (2) the money, property, or effects must have been deposited with him, or the proceeds of any property sold by him for another; (3) the money, property, or effects must have been embezzled by the accused, or fraudulently converted to his own use. These three facts must be established to your satisfaction beyond a reasonable doubt, and that the offense was committed in this county within 3 years before the finding of the indictment, before you can convict under this count. The first question you have to settle under this count, then, is, was the defendant a private banker doing business as such in Colbert Co. Ala.? And if so, second, did Mrs. Rice deposit with him money as such private banker, and the amount of said money? And, in the third place, did the defendant embezzle or fraudulently convert to his own use the said money? Now, the main contention over this is in regard to the embezzlement of the money, and it is necessary that I should instruct you fully upon this subject. Our supreme court has said the word 'embezzle,' used in the statute, is one having a technical meaning, and that meaning suggests the character and scope of the proof required to sustain the charge. It involves two several ingredients or elements: (1) A breach of duty or trust in respect of money, property, or effects in the party's possession, belonging to another; (2) the wrongful or fraudulent appropriation thereof to his own use. These must be 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 the possession of such property, it must be unlawfully and fraudulently converted to the use of the person so in possession and custody thereof; and in a prosecution under this statute the person charged must have been a private banker, commission merchant, factor, broker, attorney, bailee, or other agent. Now, gentlemen, it is a controverted fact in this case how the defendant came into possession of Mrs. Rice's money, and what kind of a deposit she made with him, if any. I charge you that there are three classes of deposits recognized by law and in the banking business, viz. special, specific, and general: (1) Special, when the whole contract, expressed or implied, is that the thing deposited shall be safely kept, and the identical thing returned to the depositor. (2) Specific, when money is deposited to pay a specified check, drawn or to be drawn on for any purpose other than mere safe-keeping or entry on general account; the title remaining in the depositor until the bank pays the person for whom it is intended, or promises to pay it to him. (3) General, all deposits not expressly made special or specific, or unless the circumstances are such as to imply that the deposit is not meant to be general, as when the money is deposited inclosed in a box or bag, or sealed up. Now, in this case, the third count of the indictment charges that Mrs. Rice's deposit was a special deposit, and the proof must so show it to be such before there can be a conviction under it. The money must have been deposited with the defendant to be safely kept and returned to her when she demanded it, so it remained her money. The fact, however, that she got a pass book, and checked against the money, would make no difference, however, if she and defendant both understood it was to remain her money until drawn or checked out. Now, gentlemen, this is the law in this case, as I understand it, and you are to determine the facts. You are to look to all the evidence which has been admitted before you, and determine what the facts are. You can look to the testimony of all the witnesses, and if there is any conflict in the testimony it is your duty to reconcile it, if you can; and, if you cannot reconcile it, you are to determine what witnesses you will believe, and you must also consider the testimony of the defendant. But in considering his testimony the law is that you must further consider that he is the party charged with the commission of the offense and the party who will be punished if he is convicted, and give his testimony such weight, in connection with the other testimony, as you think it is entitled to. If you come to the conclusion, beyond a reasonable doubt, from the evidence, and the law, as I have charged it, that the defendant is guilty, the form of your verdict will be: 'We, the jury, find the defendant guilty, and assess the value of the property embezzled' at so much,-whatever the proof shows it was. If, on the contrary, you think the defendant is not guilty, or have a reasonable doubt of his guilt, the form of your verdict will be, 'We, the jury, find the defendant not guilty."' The defendant excepted to the...