Ex parte State

Decision Date28 June 1917
Docket Number3 Div. 314
Citation200 Ala. 503,76 So. 445
PartiesEx parte STATE. v. COLLINS. STATE
CourtAlabama Supreme Court

John L Collins was convicted of an embezzlement, and appealed to the Court of Appeals (76 So. 413), where the judgment was reversed, whereupon the State brings certiorari. Writ granted, and judgment of Court of Appeals reversed and remanded.

W.L Martin, Atty. Gen., and W.T. Seibels, Sol., R.G. Arrington and Rushton, Williams & Crenshaw, all of Montgomery, for the State.

Roquemore & Graham, of Montgomery, for appellee.


The defendant was indicted for embezzling the funds of a corporation, and it appears from section 6828, Code of 1907 that the part thereof that relates to incorporated companies or municipal corporations, as distinguished from a private person or persons, uses the words "officer, agent or clerk," and not "servant." The Legislature not only seems to make a distinction between "agent" and "servant" in wording the statute, but our court has held in Pullam's Case, 78 Ala. 31, 56 Am.Rep. 21, that the word "agent," as used in this statute, was not used in its broadest term so as to include all servants, but was used in its popular sense, "meaning one who undertakes to transact some business or to manage some affair for another by the authority and on account of the latter, and to render an account of it; a substitute." Therefore the use of the word "servant" in the alternative with "agent" in the indictment rendered the whole count bad upon demurrer, but, as one of the alternatives was good under the statute, the indictment was not void, and was sufficient to support a judgment of conviction, and the defect would not warrant an arrest of judgment or the reversal of the case by the appellate court in the absence of the point having been appropriately raised in the trial court. In the case of Hornsby v. State, 94 Ala. 55, 10 So. 522, the court, after holding that the indictment was bad on demurrer, held that the defect must have been taken advantage of by the defendant before trial and conviction, and, speaking through Coleman, J., said:

"It would seem to follow from these authorities that, when a count is in the alternative, with some of the averments good, and others charged in the alternative are bad, and no objection is taken to the indictment, a general verdict will be referred to the good averments, and a judgment on conviction will be sustained. Under any other rule no attorney of any skill would interpose a demurrer or other objection when an indictment was defective, by reason of having bad counts or

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15 cases
  • Nelson v. State, 6 Div. 418
    • United States
    • Alabama Court of Criminal Appeals
    • April 17, 1973
    ...not be reviewed on appeal. Stehl v. State, 283 Ala. 22, 214 So.2d 299; Ray v. State, 25 Ala.App. 262, 145 So. 325; Ex parte State (State v. Collins), 200 Ala. 503, 76 So. 445; Hornsby v. State, 94 Ala. 55, 10 So. At first blush it would seem that the law on this subject is in a sad state of......
  • Esdale v. State
    • United States
    • Alabama Court of Appeals
    • January 6, 1953
    ...of demurrer, a general verdict will be referred to the good averments, and a judgment on conviction will be sustained. State v. Collins, 200 Ala. 503, 76 So. 445; Jackson v. State, 236 Ala. 75, 182 So. 83; Thomas v. State, 248 Ala. 415, 27 So.2d Therefore, conceding, which we do not, that t......
  • Western Union Telegraph Co. v. Bowen
    • United States
    • Alabama Court of Appeals
    • November 13, 1917
    ... ... this defect, and the complaint, though subject to demurrer, ... is not subject to the objection urged in argument that it ... does not state a substantial cause of action, and will not ... sustain the judgment of the court. American Bonding Co ... v. Mexican Whiting Co., 11 Ala.App. , 66 So. 847; Ex ... parte State v. Collins (Sup.) 76 So. 445; Code 1907, ... Defaults of the defendant and negligence of its servants are ... not within the ... ...
  • Seals v. State
    • United States
    • Alabama Supreme Court
    • November 9, 1939
    ... ... not void, and in the absence of timely and appropriate ... objections, is sufficient to sustain a judgment of conviction ... for grand larceny. Noles v. State, 24 Ala. 672; ... Jackson v. State, 236 Ala. 75, 182 So. 83; Ex parte ... State (State v. Collins), 200 Ala. 503, 76 So. 445; ... Gaines v. State, 146 Ala. 16, 41 So. 865; ... Hornsby v. State, 16 Ala.App. 89, 75 So. 637 ... The ... Court of Appeals erred in discharging the defendant. If ... reversible error intervened in the ruling on the demurrer, ... ...
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