Ex parte Cowart

Decision Date20 December 1917
Docket Number3 Div. 315
Citation77 So. 349,201 Ala. 55
PartiesEx parte COWART.
CourtAlabama Supreme Court

Certiorari to Court of Appeals.

Lee Cowart was convicted of embezzlement, and, the judgment being affirmed by the Court of Appeals (75 So. 711), defendant petitions for certiorari directed to the Court of Appeals. Judgment of Court of Appeals reversed, and cause remanded.

Anderson C.J., and McClellan and Gardner, JJ., dissenting.

Richard V. Evans and H.K. White, both of Birmingham, for appellant.

W.L Martin, Atty. Gen., for appellee.

THOMAS J.

The Court of Appeals properly held that any funds or properties of the state coming into the hands of a public officer by virtue of his office ipso facto constitute such officer a trustee for the state. Wolffe v. State, 79 Ala. 201 207, 58 Am.Rep. 590; Milhous v. Dunham, 78 Ala. 48; Lee v. Lee, 67 Ala. 406.

If the fund or property was received by him as such officer of the state, for a specific purpose or for the use of the state, 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" for a misappropriation of such fund or property. Wolffe v. State, supra; Lacey v. State, 13 Ala.App. 212, 231, 68 So. 706; Lacey v. State, 193 Ala. 677, 69 So. 1018; Evans v. Evans, 76 So. 95; Ledger Publishing Co. v. Miller, 170 Ala. 437, 54 So. 52; Lang v. State, 97 Ala. 41, 12 So. 183.

The proceeds of the checks, the moneys in question, were the funds of the state of Alabama, and, as such, the subject of embezzlement. Cowart v. State (App.) 75 So. 711 713. Such funds, if converted, may be recovered as property of the state fraudulently transferred. Lacey v. State, supra; Exchange Nat. Bank v. Stewart, Trustee, 158 Ala. 218, 224, 48 So. 487.

In Birmingham Railway, Light & Power Co. v. Friedman, 187 Ala. 562, 570, 65 So. 939, 941, this court, treating of inexact exceptions, declares that:

"The exception attempted to be taken to the oral charge of the court in respect of the statement that the jury's province was to decide the issues of fact was abortive; for that it was descriptive only, not the reservation of an exception to a particular, exactly designated statement of the judge. There is no practice allowing an exception by description of a subject treated by the court in an oral charge to the jury."

After the conclusion of the oral charge and the expression of satisfaction therewith by the state, the court inquired, "Is the defendant satisfied?" to which defendant's counsel replied:

"Exception to that part of the general charge starting with the words, 'If, however, you may find there is nothing in the law requiring him to collect this money, if he collected it, notwithstanding he had no authority to do so, he would be guilty,' and exception to that part beginning, 'One check for $25, one for $1.25, and one for $50,' sentence beginning with that, and to that part beginning, 'After he got the money out of the bank it ought to have been deposited in the state treasury,' ending with the words, 'under that
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33 cases
  • Pollard v. Rogers
    • United States
    • Alabama Supreme Court
    • April 15, 1937
    ... ... reserved. Such exceptions will be considered as they are ... definitely or specifically reserved. Ex parte Cowart, 201 ... Ala. 55, 77 So. 349; Birmingham Ry., L. & P. Co. v ... Jackson et al., 198 Ala. 378, 73 So. 627. In Bean v ... Stephens, 208 ... ...
  • Knowles v. Blue
    • United States
    • Alabama Supreme Court
    • January 18, 1923
    ... ... 989; Birmingham Paint, etc., Co., v. Gillespie, 163 ... Ala. 408, 50 So. 1032; Kelly v. State, 160 Ala. 48, ... 49 So. 535; Ex parte Scudder-Gale Gro. Co., 120 Ala. 434, 25 ... So. 44; Denson v. Stanley, 17 Ala. App. 198, 84 So ... 770. The same rule obtains as to the action of ... charge, or merely designating the beginning of part of the ... oral charge excepted to, is insufficient. Ex parte Cowart, ... 201 Ala. 55, 77 So. 349; B. R., L. & P. Co. v ... Friedman, 187 ala. 562, 570, 65 So. 939; Doullut & ... Williams v. Hoffman, 204 Ala. 33, ... ...
  • Louisville & N. R. Co. v. Parker, 6 Div. 471.
    • United States
    • Alabama Supreme Court
    • June 27, 1931
    ... ... was not specific as required, and not within the rules ... Postal Tel. Cable Co. v. Hulsey, supra; Ex parte Cowart, 201 ... Ala. 55, 56, 77 So. 349 ... The ... general affirmative instruction requested by and denied to ... defendant to count 1 ... ...
  • Liverpool & London & Globe Ins. Co., Limited, of England v. McCree
    • United States
    • Alabama Supreme Court
    • October 15, 1925
    ... ... parts of the charge to which exception was taken. The ... exception was by way of reference only. Ex parte Cowart, 201 ... Ala. 55, 77 So. 349 ... The ... judgment of the circuit court is affirmed ... Affirmed ... ...
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