Davis v. State, 7 Div. 352.
| Decision Date | 04 October 1938 |
| Docket Number | 7 Div. 352. |
| Citation | 185 So. 771,28 Ala.App. 348 |
| Parties | DAVIS v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied Nov. 1, 1938.
Appeal from Circuit Court, Etowah County; H. H. Disque, Jr., Judge.
Jeff Davis was convicted of embezzlement (Code 1923, § 3962), and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Davis v. State, 185 So 774.
Motley & Motley, of Gadsden, for appellant.
A. A Carmichael, Atty. Gen., for the State.
The indictment in this case charged the defendant with the violation of the offense provided and denounced by Section 3962 of the Code 1923, which is as follows: "Whoever being the administrator of the estate of the decedent, or the executor of a last will, or the guardian of any minor or insane person, or a trustee or other person acting in any fiduciary capacity, without good cause, fails or refuses, when legally required by the proper person or authority, or on demand of a surety on the bond of any such administrator, executor or guardian, to account for or pay over to such person or persons as may be lawfully entitled to receive the same, any money, chose in action, or other property, which may have come into his hands by virtue of his office, duty or trust, shall be deemed guilty of embezzlement, and, on conviction, shall be punished as if he had stolen the same."
From the judgment of conviction this appeal was taken, and appellant earnestly insists that the conviction cannot stand for the reason that the statute of limitation of three years, Code 1923, § 4930, had intervened before the commencement of this prosecution.
If this was a case wherein simple embezzlement was charged, the foregoing contention would probably be sustained as it affirmatively appears from the record more than three years had elapsed since any of the money in question went into the hands of this appellant as guardian of the minors named. In an ordinary case of embezzlement four distinct propositions of fact must be established, beyond a reasonable doubt, to sustain a prosecution for embezzlement by an agent of a private person or corporation: (1) That the accused, within the time covered by the indictment, was the agent of the person or corporation, and that he, by the terms of his employment, was charged with receiving the money or property of his principal. (2) That he did, in fact, receive such money or property. (3) That he received it in the course of his employment. (4) That he, knowing it was not his own, converted it to his own use or to the use of some third person not the true owner.
However, the gist or gravamen of the offense here charged, and under consideration, is materially and essentially different from the foregoing, as will be noted by reading the Statute, supra. In this case it affirmatively appears, without dispute, that this appellant was duly appointed and acted as the guardian of the two minors named. That as such guardian the sum of $1,000, said amount being the estate of Willie Johnson the mother of the wards Ralph and Elvord Johnson, came into his hands, and that upon final settlement of such guardianship it was regularly and legally ascertained, in the Probate Court, that the total amount received by appellant, as guardian, was, as stated, $1,000. That out of said amount he had paid and was allowed credit for the sum of $660.97, leaving a balance due by him of $339.03, as charged in each count of the indictment. Notwithstanding proper demand had been made for the payment of said balance, and also execution had been issued, the amount has never been paid, and in failing or refusing to so pay, which is the gist of the offense charged, he brought himself within the terms and subject to the provisions of the Statute under which he was indicted. The final settlement as guardian aforesaid was had on the 17th day of September, 1934. The indictment was returned and filed in court on September 18, 1935, hence the Statute of limitations had not intervened and therefore cannot apply. The offense complained of, and of which he was convicted, was not the conversion by him of the money in question when received by him as guardian; but his failing or refusing, without good cause, to account for or pay over to his wards who were lawfully entitled to receive the money which admittedly came into his hands by virtue of his guardianship of the two persons named in the indictment.
Upon the trial of this case, there was no insistence upon the part of the defendant that he had paid the amount of money in question to his said wards, or to anyone else lawfully entitled to receive same. Therefore the evidence was without dispute as to this material and controlling question. The defendant did, however, undertake to show that he had made a trade or contract with the mother of said wards wherein he was to receive $500 of the $1,000 aforesaid as services, etc.; and, in this connection the record shows the following occurrence:
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