Gleason v. State
Decision Date | 19 December 1912 |
Citation | 60 So. 518,6 Ala.App. 49 |
Parties | GLEASON v. STATE. |
Court | Alabama Court of Appeals |
Appeal from Criminal Court, Jefferson County; Frank Cahalan, Judge.
Martin E. Gleason was convicted of embezzlement, and he appeals. Reversed and remanded.
The following is the indictment omitting the formal charging part. Count 1: "Martin E. Gleason, being at the time the agent or clerk of the C. D. Kenny Company, a body corporate did embezzle or convert to his own use, or to the use of another, or fraudulently secreted with the intent to convert to his own use, or the use of another, bank notes, money checks, or bills of exchange of or about the amount of $5,200.00, and of that value, the property of the C. D. Kenny Company, a body corporate, which had come into his possession as such agent or clerk." The second count is similar to the first, except that it alleges that a particular description of the property converted is to the grand jury unknown.
Allen & Bell, of Birmingham, for appellant.
R. C Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.
We cannot review the ruling of the court on a demurrer to the indictment, as no such demurrer is set out in the record. The indictment contained two counts. If either of the counts charged a criminal offense, the verdict finding the defendant guilty as charged in the indictment is to be referred to the good count, and the general judgment rendered in pursuance of such verdict is not reversible error. Handy v State, 121 Ala. 13, 25 So. 1023.
It is urged in behalf of the appellant that the indictment is insufficient to support the conviction because of the failure of its averments to show that the property with the embezzlement or fraudulent conversion of which he was sought to be charged had come into his possession by virtue of his employment mentioned in the indictment. It is not to be doubted that one of the essential elements of the statutory offense of embezzlement by an officer, clerk, agent, servant or apprentice (Code, § 6828) is that the money or property with reference to which the offense is claimed to have been committed had come into the defendant's possession "by virtue of his office or employment." In speaking of a similar offense created by another statute, it was said in the opinion rendered in the case of Reeves v. State, 95 Ala. 41, 11 So. 162: Courts frequently emphasize the necessity of its being made to appear that the property with reference to which the offense of embezzlement is charged had been intrusted to the defendant had lawfully come into his hands. Wall v. State, 2 Ala. App. 157, 56 So. 57; Moore v. United States, 160 U.S. 268, 16 S.Ct. 294, 40 L.Ed. 422. A question in this case, then, is whether the averments of either count of the indictment show that the money or property mentioned had come into the defendant's possession "by virtue of his office or employment" within the meaning of that expression as it is used in the statute.
It is not necessary for the indictment to follow the language of the statute if its averments show that the defendant's relation to the money or property mentioned was such as the statute describes. Sparrenberger v. State, 53 Ala. 481, 25 Am. Rep. 643.
The first count of the indictment charges that the defendant "being at the time the agent or clerk of the C. D. Kenny Company, a body corporate, did embezzle or fraudulently convert to his own use, or to the use of another," described personal property, alleged to be of or about the amount of $5,200, and of that value, the property of the C. D. Kenny Company, which property "had come into his possession as such agent or clerk." In the indictment which was before the court in the case of United States v. Northway, 120 U.S. 327, 7 S.Ct. 580, 30 L.Ed. 664, the allegation was that the defendant "as such president and agent [of a national bank] then and there had and received in and into his possession certain of moneys and...
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