Gradsky v. State
| Decision Date | 12 February 1962 |
| Docket Number | No. 42093,42093 |
| Citation | 243 Miss. 379,137 So.2d 820 |
| Parties | Norman GRADSKY v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Barnett, Montgomery, McClintock & Cunningham, Gore & Gore, Creekmore & Beacham, Jackson, for appellant.
Joe T. Patterson, Atty. Gen., by J. R. Griffin, Asst. Atty. Gen., for appellee.
The appellant Norman Gradsky was indicted, convicted and sentenced to a term in the State Penitentiary upon a charge of having embezzled a deepfreeze from Insured Savings & Loan Association, Inc. After a careful examination of the record we have come to the conclusion that this case must be reversed for the following reasons:
First. Sec. 26, Miss. Constitution 1890, guarantees that 'In all criminal prosecutions the accused shall have a right * * * to have compulsory process for obtaining witnesses in his favor * * *', and this means, he may have his attorney, as well as other witnesses, summoned to give evidence in his favor, when his attorney has evidence vital to his defense. Moreover, accused cannot be denied this right on the ground that it may embarrass the attorney or violate etiquette of the court. Adams v. State, 202 Miss. 68, 30 So.2d 593, is not adverse to the holding in this case. We have pointed out in the case of Brooks v. State, 209 Miss. 150, 46 So.2d 94, that 'Constitutional rights in serious criminal cases rise above mere rules of procedure.' The court may admonish an attorney when it appears that he knew in advance that he would be called upon to testify in a case, for taking active part in the trial of a case, but the court cannot refuse an accused the right to introduce competent evidence in his favor because it may appear that an attorney has violated an ethical rule. Miller v. Urban, 123 Conn 331, 195 A. 193, 118 A.L.R. 951-954; 58 Am.Jur. 110, Witnesses, Sec. 152.
The refusal to permit defendant the right to introduce his attorney as a witness when he had vital evidence in favor of the defendant was reversible error.
Second. Conversion is one of the essential elements under the charge of embezzlement laid in the indictment in this case. Bell v. State, 110 Miss. 430, 70 So. 456. The State had the burden of proving that the property rightfully came into the possession of the defendant Norman Gradsky by virtue of his office as president of the corporation and that thereafter he feloniously converted the property described in the indictment to his own use. Moore v. State, 49 So.2d 415 (Miss.); Jackson v. State, 214 Miss. 828, 52 So.2d 914; 29 C.J.S. Embezzlement § 11, p. 682; 18 Am.Jur., Embezzlement, Sec. 21, p. 581. The word 'embezzlement' itself is practically synonymous with 'wrongful appropriation' and is defined as the fraudulent appropriation of the property of another. Burdick's Law of Crime, Vol. 2, Sec. 584, p. 390.
In order to constitute the crime of embezzlement, something must have been done in execution of the fraudulent intention to misappropriate the property in accused's possession to his own use. 18 Am.Jur., Embezzlement, Sec. 25, p. 585. We find that there is insufficient evidence to show that Norman Gradsky did any act or acts sufficient to indicate that he intended to wrongfully convert the deepfreeze to his own use after it came into his possession...
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Gray v. State
...deprive him of due process of law. See United States v. Wilson, 732 F.2d 404, 412 (5th Cir.1984). Gray's reliance on Gradsky v. State, 243 Miss. 379, 137 So.2d 820 (1962), is misplaced. In that case we held that a defendant may summon his own attorney to give evidence vital to his defense, ......
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Evans v. State, 53754
...above mere rules of procedure. 209 Miss. at 155, 46 So.2d at 97. This principle was restated with approval in Gradsky v. State, 243 Miss. 379, 384, 137 So.2d 820, 821 (1962). Its current vitality is attested by the Court's recent decisions in Read v. State, 430 So.2d 832, 837 (Miss.1983); a......
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