Cowart v. State

• Decision Date: 03 April 1917
• Docket Number: 3 Div. 265
• Citation: 75 So. 711,16 Ala.App. 119
• Parties: COWART v. STATE.
• Court: Alabama Court of Appeals

75 So. 711

16 Ala.App. 119

COWART v. STATE.

3 Div. 265

Court of Appeals of Alabama

April 3, 1917

On Rehearing, June 5, 1917

On Rehearing

Appeal from City Court of Montgomery; A.H. Alston, Judge.

Lee Cowart was convicted of embezzlement, and appeals. Affirmed. Application for rehearing overruled.

Jesse F. Stallings and Richard V. Evans, both of Birmingham, for appellant.

W.L Martin, Atty. Gen., and Harwell G. Davis, Asst. Atty. Gen for the State.

BROWN P.J.

The defendant was convicted of embezzling money which the indictment alleges came into his possession as bailee or trustee of the state. The conviction was under the fourth count of the indictment only, and this operated as an acquittal as to the other counts. Brewer v. State, 83 Ala. 113, 3 So. 816, 3 Am.St.Rep. 693.

One of appellant's contentions is that the defendant could not be a bailee or trustee of the state, as a matter of law unless he was authorized by statute to receive money of the state, as its agent or officer, and that the statute conferred on him no such authority. This court ruled on this question in the case of Lacey v. State, 13 Ala.App. 212, 68 So. 706, where it was held that:

"Any fund or property belonging to the state coming into the hands of a public officer of the state by virtue of his office ipso facto constitutes such officer a trustee for the state. Wolffe v. State, 79 Ala. 206, 58 Am.Rep. 590. And if the fund or property was received by such officer to be held by him for a specified special purpose or to be delivered to another officer of the state, for the use of the state, although the officer had no right to receive it, such officer would be a bailee of the state and liable as such."

The holding in that case was reaffirmed by the court in the companion case at the same term (Lacy v. State, 13 Ala.App. 267, 69 So. 244), and was reviewed by the Supreme Court on petition for writ of certiorari without change. Ex parte Lacey (Lacey v. State) 193 Ala. 677, 69 So. 1018.

The indictment is framed under section 6831 of the Code 1907; and another contention of the appellant is that funds belonging to the state, or other public funds, are not within the protection of this statute. This question has likewise been ruled against appellant's contention in Peters v. State, 12 Ala.App. 133, 67 So. 723, where it was said:

"The statute (Code 1907, § 6831) provides in this particular that: 'Any *** bailee, or other agent, or trustee *** who embezzles or fraudulently converts to his own use any money, property, or effects deposited with him, or which may have come into his possession by virtue of any bailment for any purpose, *** must be punished, or on conviction, as if he had stolen it.' "

The fourth count follows substantially the language of the statute, and was not subject to the several objections made by the demurrers. Johnson v. State, 152 Ala. 46, 44 So. 670; Kimbell v. State, 165 Ala. 118, 51 So. 16; Brown (Jerome S.) v. State, 72 So. 757.

The appellant further contends that he was not, under the evidence, a bailee or trustee of the state of the funds in question, but that he was the bailee or trustee of the parties who paid the money into his hands. The facts material to this question, as we find them in the record, are that appellant, as immigration commissioner of the state, appointed under the provisions of section 828 of the Code of 1907, caused to be published a handbook on the resources of the state, in which he listed information as to the lands of a number of individual owners in the form of an advertisement of said lands for sale, and for which he charged and collected from each individual owner whose lands were so listed and advertised a sum of money to cover the expenses of such advertisement. The cost of printing this handbook, including the land advertisements, was charged to the state by the publishers, a bill was presented to the defendant as immigration commissioner, which was approved by him and by him presented to the Governor, who approved it, and thereupon the account was paid by the state treasurer out of the funds appropriated by section 835 of the Code. The theory of the prosecution is that the appellant converted the money collected from the landowners whose lands were advertised in said handbook to his own use, and there is evidence tending to support this theory; while the theory of the defendant is that he paid this money out in expenses incurred in the preparation of the book and its distribution.

The appellant's contention here is that, on these facts, assuming that he feloniously converted this money to his own use, he is not guilty because he was the bailee or trustee of the landowners who delivered the money to him, and was not a bailee or trustee of the state, as charged in the indictment. This contention presents the real question in the case. "A bailee is a species of agent to whom something movable is committed in trust, not for the bailee, but for another." Lang v. State, 97 Ala. 45, 12 So. 185. The statute (subdivision 2, § 831, of the Code), authorized the immigration commissioner to collect from farmers and landowners information concerning lands that were for sale, and to make publication of such information, providing that:

"All expenses incurred in subdivisions 2 and 3 of this section shall be paid by the persons whose land or property is so advertised." Code 1907, § 831, subd. 3.

In collecting such information and publishing the same, and in requiring the landowner to pay the expenses incident thereto the immigration commissioner was not the agent of the landowner, but the agent of the state, from which he received his appointment and authority, and by whose official authority he was liable to be removed. Brewer v. State, 83 Ala. 113, 3 So. 816, 3 Am.St.Rep. 693; Code 1907, § 828. The money paid to the commissioner by the landowners certainly did not belong to the commissioner; his compensation was otherwise provided for. Code 1907, § 829. It did not belong to the landowner because he had received what he paid for, the advertisement of his lands. It did not belong to the publisher; the state had paid him out of its treasury. By this process of reasoning we are driven to the conclusion that this money...