Garner v. State, 8 Div. 621.

• Citation: 158 So. 546,229 Ala. 600
• Decision Date: 20 December 1934
• Docket Number: 8 Div. 621.
• Parties: GARNER v. STATE.
• Court: Supreme Court of Alabama

158 So. 546

229 Ala. 600

GARNER v. STATE.

8 Div. 621.

Supreme Court of Alabama

December 20, 1934

Rehearing Denied Jan. 24, 1935.

Certiorari to Court of Appeals.

Bayless B. Garner was convicted of embezzlement and his conviction was affirmed by the Court of Appeals (158 So. 543). To review and revise the judgment and decision of that court, Bayless B. Garner petitions for certiorari.

Writ denied.

Bradshaw & Barnett and Chas. P. Almon, all of Florence, for the motion.

Thos E. Knight, Jr., Atty. Gen., opposed.

FOSTER Justice.

Under our statutes, "embezzlement" includes statutory offenses which do not embrace all the elements of the English offense of embezzlement. The acts made a crime by section 3961, Code, omit some of the essentials of that crime, but the statute declares that such conduct is embezzlement.

So that to sustain a conviction on a charge of embezzlement under that Code section, it is not necessary that all the elements of the offense as it existed under the early English act ( Knight v. State, 152 Ala. 56, 44 So. 585) be proven or charged, if the acts declared by the statute are proved and charged. And a general charge of embezzlement may be proven by such statutory requirements. McGilvray v State, 228 Ala. 553, 154 So. 601.

We cannot agree with petitioner therefore that an indictment under section 3961, Code, must aver possession of the funds by defendant or a fraudulent intent. Ex parte Cowart, 201 Ala. 525, 78 So. 879.

As we understand the facts stated in the opinion of the Court of Appeals, they are, in substance, so far as here necessary to recite them, that the $75 a month was paid appellant, who was one of the city commissioners, for services rendered the city, to perform which he had not been, and could not be legally employed by the city commission. But he was paid on warrant issued by the city clerk and approved by the mayor, but not authorized by the city commission, and, further, that this could not be legally done by the commission. The theory of the opinion is that no such disbursements are authorized by law; that appellant knew that fact; that the funds were under the control of the city commission of which he was a member, and that, therefore, he was wrongfully converting to his own use city funds which were under his control jointly with other commissioners; that this was wrongful because not authorized by the commission, and prohibited by law. Sections 1891 and 1910, Code.

A contract with the city must be executed and authorized as directed by law to be legal. If not thus done, it is non est factum. Mobile v. Mobile Electric Co., 203 Ala. 574, 84 So. 816; Clanton v. Chilton County, 205 Ala. 103, 87 So. 345; Gadsden v. Jones, 227 Ala. 395, 150 So. 359; Coleman v. Hartford, 157 Ala. 550, 47 So. 594.

And if it had been duly executed, it was prohibited by the express provisions of section 1891, Code, which makes it a misdemeanor for him to render service to the city for...