Corbin v. State

• Decision Date: 03 April 1917
• Docket Number: 6 Div. 160
• Citation: 15 Ala.App. 602,74 So. 729
• Parties: CORBIN v. STATE.
• Court: Alabama Court of Appeals

74 So. 729

15 Ala.App. 602

CORBIN v. STATE.

6 Div. 160

Court of Appeals of Alabama

April 3, 1917

Appeal from Criminal Court, Jefferson County; A.H. Alston, Judge.

Jim Corbin was convicted of embezzlement as notary public and ex officio justice of the peace, and appeals. Reversed and remanded.

The facts necessary for a decision of this case are as follows The defendant was indicted under section 6838 of the Code and the indictment in two counts charged that the defendant as a notary public and ex officio justice of the peace embezzled money received by him in his official capacity; and in two counts charged that the defendant, as a notary public, embezzled, etc.

The evidence for the state tended to show that the defendant, acting as a justice of the peace, fined numerous persons for various offenses and collected and appropriated the fines; that the cases did not appear on his docket presented to the grand jury, and that he did not account for the money to the county treasurer, as required by law; that when he was before the grand jury, he denied ever having some of the defendants before him. On the trial it was shown that the docket had been delivered to the solicitor and was lost, proof of the loss being made so as to authorize secondary evidence of its contents. On the trial of the case, the defendant did not deny having fined the persons alleged; did not deny that some of the cases were not on his docket; but offered evidence tending to show that he, as justice of the peace, had tried a great many cases besides the ones alleged by the state, in which the state had failed to convict, and in which cases he was entitled to certain fees allowed by law, to be paid out of the fines collected by him in cases tried in his court. The court refused to allow the defendant to make this proof, to which action the defendant legally reserved exception.

R.D. Coffman and J.B. Aird, both of Birmingham, for appellant.

W.L. Martin, Atty. Gen., and P.W. Turner, Asst. Atty. Gen., for the State.

SAMFORD J.

1. The indictment in all of its counts follows the Code form, and is not subject to demurrer. Marsh v. State, 3 Ala.App. 83, 57 So. 387; Hankinson v. State, 2 Ala.App. 110, 57 So. 61.

2. The question of whether the defendant was a notary public or a notary public and ex officio justice of the peace was one of proof, and this could not be raised by demurrer to the indictment.

3. The contention of the defendant is that, under the facts, if guilty at all, it is of a violation of section 7488 of the Code, fixing a penalty for a failure to keep a docket and make settlement as required. We cannot agree to this. A justice or notary may be guilty under section 7488 without being involved morally; neglect, or even ignorance, might render him subject to the penalty; but this section was never intended to be a bar to a prosecution under section 6838, or to render justices of the peace and notaries immune from a prosecution for the graver offense denounced in that section. In the one case the penalty is for mere neglect, oversight, ignorance, etc., while in the other it is a penalty for corruption and dishonesty. The distinction is too apparent to admit of argument or to require citation of authority.

4. But before a conviction can be had under section 6838, all of the material elements of the offense must be alleged and proven--i. e., that the defendant was a...