Davis v. State

• Decision Date: 08 February 1915
• Docket Number: 17723
• Court: Mississippi Supreme Court
• Parties: DAVIS v. STATE

67 So. 178

108 Miss. 710

DAVIS v. STATE

No. 17723

Supreme Court of Mississippi

February 8, 1915

APPEAL from the circuit court of Adams county. HON. N.E. JACKSON Judge.

Mayor Davis was convicted of embezzlement and appeals.

This is an appeal from a conviction of embezzlement. The opinion states the facts.

Among other errors assigned, it is claimed that the third instruction requested by the defendant should have been given. Said instruction is as follows:

"(3) The court instructs the jury that they should try this case on the evidence produced from the witnesses, and not on the statements of attorneys."

Affirmed.

E. E Brown, for appellant.

The court erred in not sustaining the demurrer filed by the defendant to the indictment in this case. The indictment in the instant case is in practically the same language as the indictment in Richburger v. State, 90 Miss. 806 except it omits the following allegation that appears in Richburger indictment, to wit: "Which had come into his possession and had been entrusted to his care and keeping by virtue of his said employment as such cashier."

It is true that the indictment alleges that the defendant "being then and there the clerk and servant of the Bluff City Savings Bank, a Mississippi corporation, did then and there, by virtue of his employment as such clerk and servant have in and under his care and possession, of the property of the said Bluff City Savings Bank, money in the amount of thirteen hundred and eleven dollars," but there is no specific allegation that said money had been entrusted to him as such clerk and servant. Sec. 1136 of Code of Mississippi, under which the indictment was drawn requires that the indictment charge the employee embezzled money "which shall have come or been entrusted to his care or possession by virtue of his office, place or employment."

"There was no legal proof that the Bluff City Savings Bank is a corporation; and the court erred in admitting the statement of the witness Ross over objection that the Bluff City Savings Bank is a corporation, this being the only evidence offered by the state to show the same a corporation." The indictment alleges the Bluff City Savings Bank was a Mississippi corporation, yet the only suggestion in the record that it was a corporation is contained on page 52 of record in direct testimony of J. R. Ross, which is as follows: "Q. Was the Bluff City Savings Bank a corporation? A. Yes, sir. Q. Incorporated under the laws of the state of Mississippi? A. Yes, sir. Judge Brown: The plaintiff objects to this mode of proving that the Bluff City Savings Bank was a corporation. (The court overruled the objection, and the defendant then and there excepted to the ruling of the court.)"

In Hampton v. State, 54 So. 722, it is decided that ownership must be proven in embezzlement as it is in cases of larceny, burglary and false pretenses, and that an indictment charging defendant with embezzling funds of "American Express Company, "a corporation, cannot be sustained when the evidence shows the funds belonged to "American Express Company, a partnership."

In James v. State, 77 Miss. 370, WHITFIELD, J., in delivering opinion of the court said: "It is settled certainly that it is necessary to allege the ownership of the building burglarized, and to prove it as laid. And when a corporation is alleged to be the owner, there must be proof of the existence of the corporation." Johnson v. State, 73 Ala. 486; Berry v. State, 92 Ga. 47, and Newton v. State, 74 Ind. 338, are directly in point. Mr. Bishop says (2 New Cr. Proc. p. 71) that "the de facto character of the corporation only need be shown in evidence, citing authorities." And it is said in Norton's case, supra, that it is enough to prove that "the railroad company was known and acted as a corporation; but there is absolutely no testimony whatever in this record as to the existence of the corporation, Illinois Central Railroad Company, not chartered in this state; and this failure of proof would be fatal, if the error had been availed of especially in the court below." James v. State, 77 Miss. 370.

In this case there was no charter of Bluff City Savings Bank introduced, no testimony that the bank was holding itself out as a corporation and no evidence the bank was known and acting as a corporation. By objecting to the statement of Ross that said Bank was incorporated, by moving to exclude the testimony of the state and for a peremptory instruction at the conclusion of the evidence, the defendant properly availed himself in the lower court of the state's failure to either prove properly that said bank was in fact incorporated or that it held itself out or was known and acting as a corporation.

Third: "The court erred in not sustaining the motion by defendant to require the state to select some one of the several items alleged to have been embezzled and rely on same for a conviction in this case."

Fourth: "The court erred in overruling the numerous objections made by the defendant to the evidence offered by the state of discrepancies in the books kept by defendant when compared with books kept by the witness Ross, and in permitting the witness to testify over the objection of defendant to some forty-odd items of such discrepancies."

Seventh: "The court erred at the conclusion of the evidence of the state in refusing to require the state to elect which of the several items of discrepancies the state would rely on for a conviction in this case."

Eighth: "The court erred, after the state had furnished to defendant a list of over twenty-odd items alleged to be double charges of checks and a list of over twenty-odd items of deposits appearing on the individual ledger kept by the witness Ross and not shown in the cash book kept by the defendant, to require the state to elect which of these lists, either the checks or deposits, the state would rely on for a conviction in this case."

Ninth: "The court erred in overruling the motion of defendant to require the state at the conclusion of its evidence to elect which of the several items of embezzlement it would rely on for a conviction in this case." As they all relate to the same character of error, I will argue together the third, fourth, seventh, eighth and ninth assignments of error.

Claiming all of them were items embezzled by defendant, the state introduced over twenty instances of checks it claimed were double charged by defendant on his daily cash book, because they did not appear on the individual ledger kept by cashier Ross, and also introduced over twenty items of deposits as having been embezzled by defendant, because they did not appear on defendant's daily cash book and did appear on the individual ledger. Not only did the evidence show the books, including the individual ledger were very incorrectly kept, but there was evidence of deposits made that appeared on the defendant's cash book and not on the cashier's individual ledger and of checks charged on the individual ledger that were not charged on the daily cash book.

Again, even had the evidence not shown how very incorrect was the bookkeeping, the state under the indictment should have been required to confine its evidence to a single item alleged to have been embezzled. Defendant was indicted under section 1136 of Code of 1906, for embezzling a specific sum of money, to wit; one thousand three hundred and eleven dollars, and not for embezzling "a balance of account," as provided for in section 1436 of said Code.

In Starling v. State, 90 Miss. 255, the conviction was sustained, because the indictment charged defendant with "having embezzled a balance of account of seventy-two thousand dollars" and because "the evidence overwhelmingly showed the appellant guilty of every single act of embezzlement shown in the testimony," see page 274 of 90 Miss.

Starling was indicted for embezzling a balance of account under both sections 1058 and 1364 of Code of 1892, which are now sections 1136 and 1436 of the Code of 1906. In Richburger v. State, 90 Miss. 806, the appellant was indicted under section 1058 of Code of 1892, now section 1136 of Code of 1906, for embezzling a specific sum of money, to wit: eight thousand six hundred and fifty-nine dollars and fifty-nine cents, and not a balance of account under section 1364 of Code of 1892, now section 1436 of Code of 1906. It seems evidence had been introduced as to various items the state claimed defendant had embezzled without objection by defendant, and it was only after the state rested that defendant asked the state be required to elect the item upon which it would rely for a conviction. This court recognized the defendant under the indictment was entitled to have the evidence confined to a single item claimed to have been embezzled, but held no reversible error was committed by the lower court in permitting the state to elect two items, one for twelve dollars and seventy-five cents and the other for five hundred dollars, as there was no evidence to support the contention of embezzlement of the twelve dollars and seventy-five cent item and the conviction necessarily was upon the five hundred dollar item, see top of page 837 of 90 Miss.

Caston had been tried and acquitted on an indictment that charged while he was cashier of Pike County Bank from January 16 1905, to September 8, 1908, "there was entrusted to his keeping and care a large sum of money, to wit: one hundred thousand dollars of the money and property of the bank; that then and there and while acting in the above capacity, and being entrusted with the funds, he embezzled the sum of sixty thousand four hundred and seventy-eight dollars" etc. In delivering the opinion of the court, MAYES, J., held that while the words "a balance of account"...