Esdale v. State

• Decision Date: 06 August 1953
• Docket Number: 6 Div. 557
• Citation: 260 Ala. 45,68 So.2d 519
• Parties: ESDALE v. STATE.
• Court: Alabama Supreme Court

Page 519

68 So.2d 519

260 Ala. 45

ESDALE v. STATE.

6 Div. 557.

Supreme Court of Alabama.

Aug. 6, 1953.

Rehearing Denied Nov. 27, 1953.

Crampton Harris, Geo. S. Brown, John T. Batten, Matt H. Murphy, Sr., and Matt Murphy, Jr., all of Birmingham, for petitioner.

Si Garrett, Atty. Gen., and Wm. H. Sanders, Asst. Atty. Gen., and W. Emmett Perry, Circuit Sol., Birmingham, opposed.

SIMPSON, Justice.

This certiorari was granted to review the opinion and judgment of the Court of Appeals affirming the conviction of petitioner of embezzlement. The jury assessed the value of the property embezzled at $65.20 and defendant was sentenced to three years in the penitentiary. On appeal the Court of Appeals affirmed the judgment. 68 So.2d 512.

The question of import here is whether from the facts appearing in the opinion of the Court of Appeals the judgment of that court is due to be affirmed or, on the contrary, whether from the stated facts it should be adjudged that the defendant was entitled to the affirmative charge. A secondary inquiry is whether, if defendant is shown guilty, the evidence only warranted a verdict of guilty of a misdemeanor.

The court has been much aided by the briefs of counsel for the parties, as well as the oral arguments at the bar on submission on certiorari. Much has been said on both sides in seeking to interpret the opinion of the Court of Appeals with reference to the statement of facts and as to what the record would show if this court should resort to it for a complete study of the case. There seems to be some confusion in the minds of counsel with respect to this court's prerogative and duty in the premises and we will first advert to the settled rules with respect to this type of certiorari.

The rule, long established, is that this court will not revise the rulings and judgment of the Court of Appeals 'on questions of fact or the application of the law to the facts as found by that court, unless the facts are stated in the opinion of the court and the law is erroneously applied to the facts stated. * * * Nor will this court issue certiorari to disturb the judgment of the Court of Appeals supported by any evidence determined by that court. * * *' Shouse v. State, 258 Ala. 499, 63 So.2d 728.

But this court is not required to write in ignorance where the meaning of the language of the opinion is left uncertain and a resort to the record would explain such language. In such a case we are permitted to look to the record for a proper explanation. Sinclair Refining Co. v. Robertson, 247 Ala. 260, 23 So.2d 872; John E. Ballenger Const. Co. v. Joe F. Walters Const. Co., 236 Ala. 546, 184 So. 273.

Also matters referred to in the opinion of the Court of Appeals by reference only, such as pleadings, instruments or documents, if pertinent to a decision of the point in question, may be examined by the reviewing court for a complete understanding of the issue involved. Ingram v. State, Ala.Sup., 66 So.2d 843. John E. Ballenger Const. Co. v. Joe F. Walters Const. Co., supra (2); State ex rel. Levine v. Trimble, 320 Mo. 526, 8 S.W.2d 927; State ex rel. Western Automobile Ins. Co. v. Trimble, 297 Mo. 659, 249 S.W. 902; 14 C.J.S., Certiorari, § 157, page 301, note 80.

But the Court of Appeals is a court of last resort in matters within its jurisdiction, with its rulings subject only to a limited review by this court. So further than the foregoing this court is not permitted to pursue the record to assert its view of the propriety of the rulings of that court.

We confess at the outset the case has been perplexing, not only from the legal view but also because of the difficulty in appraising exactly the status of the purported facts set out in the opinion of the Court of Appeals. In referring to matters of fact the opinion seems to state the contentions of the parties and some testimony in support thereof and then, after a discussion of the pertinent principles of law, concludes with respect to the point considered: 'Under the evidence here presented, the court properly overruled the defendant's motion to exclude the State's evidence and the request for the general affirmative charge.'

That court, of course, may or may not embody in its opinion any finding or any complete statement of facts, as its wise discretion might dictate, and on original consideration of this petition it was this court's view that a sufficient finding of facts was not set forth in the opinion to warrant treating the question of the right vel non of the defendant to a directed verdict or the general affirmative charge. We still lean somewhat to that view, but out of deference to the earnest and cogent argument of counsel, who have so diligently presented their case in opposition to the view expressed by the Court of Appeals, we have decided to treat the 'contentions' referred to in the opinion as a statement of the salient facts adduced by the respective parties in the trial below and will proceed to express our view of the law as applied to that construction.

Thus treated, we deduce the following facts: Petitioner was in the bail bond business in Jefferson County and on October 15, 1949, one Dick Garth was arrested for the illegal possession of whisky. Petitioner made Garth's appearance bond and charged him a fee of $33. The opinion shows that on October 26, 1949, Garth was 'convicted and fined $50 by the Jefferson County Court of Misdemeanors. The case was passed to allow Garth time to pay the fine. Garth testified he did not have the money to pay the fine but he asked defendant to take care of it and defendant said he would and told Garth to bring the money as he could.' The passing of the case to allow Garth to get up the money to pay the fine appears to have been the method of doing business in that court. The court would accept no installment payments on fines, so Garth was held under the appearance bond petitioner had made for him and the case was passed as stated and Garth began to make his payments to petitioner on his fine and costs. Petitioner, according to the State's evidence, was to pay off the fine and costs when Garth had paid to him a sufficient amount. The State's evidence tends to show that under this arrangement Garth paid to petitioner in all $105.20, being $33 for the bond fee and $72.20 for the fine and costs. The last payment made by Garth to petitioner was on September 1, 1950, in the amount of $5.20, and petitioner gave Garth a 'clear receipt' and told him to 'go on back home and don't let the judge catch you any more.'

But no part of this money paid by Garth was ever applied to the payment of the fine and costs and they still remain outstanding and unpaid. On the contrary, the money was used by petitioner for a totally different and unauthorized purpose. We thus interpret the opinion of the Court of Appeals to have so concluded on the State's evidence ('contentions') set forth therein. That that conduct constituted embezzlement there can be no doubt. Abbott v. State, 27 Ala.App. 87, 167 So. 599, certiorari denied, 232 Ala. 194, 167 So. 602; Eggleston v. State, 129 Ala. 80, 84, 30 So. 582; People v. Pierce, 110 Cal.App.2d 598, 243 P.2d 585.

The petitioner contended that the diversion of Garth's money for another purpose was authorized; that the same was utilized to pay off a forfeiture on Garth's appearance bond in the amount of $57.50 and that he only had remaining, less his $33 bond fee to which he was entitled, the sum of $14.70 and that if he was guilty of any offense, which he denied, it would be punishable only as a misdemeanor. We cannot accord this interpretation to the facts stated in the opinion of the Court of Appeals. On the contrary, the opinion indicates that the verity of this forfeiture transaction rested in sufficient doubt to make the issue one of fact for determination of the jury, impelling the holding accordingly. As to this feature of the case the following appears: The case against Garth for which petitioner had made the appearance bond was passed several times from October 26, 1949, to January 27, 1950, when 'forfeiture was taken' (sic). The amount of the forfeiture, including costs, was $57.50, which petitioner paid on March 13, 1950, 'when the forfeiture was made final' (sic). When the conditional forfeiture was taken Garth had just three days prior thereto made a $10 payment to petitioner and 'on the day the forfeiture was made final he had paid to appellant a total of $37' on his fine and costs. The opinion of the Court of Appeals further shows: '* * * although Dick Garth and his wife continued to visit defendant's place of business after the date of the forfeiture and continued to make payments for the purpose of paying off Dick Garth's fine, the defendant did not inform Garth of the forfeiture nor did he tell Garth his money had been used to pay the forfeiture. When the last payment of $5.20 was made on September 1, 1950, Garth was given a clear receipt and defendant [petitioner] told him to 'go on back home and don't let the Judge catch you any more.' No part of the money paid by Garth was ever applied to the payment of the fine. The original fine and costs were never paid.' Petitioner denied that he had kept Garth in ignorance of the forfeiture and that he had fully acquainted him with the status of his case and his duty in regard thereto, but this conflict in the evidence, as the others, was for resolution of the jury. The Court of Appeals so ruled.

But it is contended by petitioner that he was authorized to so apply Garth's money because when petitioner made the appearance bond Garth signed a contract agreeing, among other things, to pay in addition to the bond fee 'all final forfeitures; all forfeiture costs; all fines and costs that may be assessed against the defendant, whether the same are paid by the Bail Bond Company, or whether said fines and costs are due and payable by the defendant;' etc. On the basis of this contract it is argued with much...