Gurley v. State

• Decision Date: 05 March 1923
• Docket Number: (No. 209.)
• Citation: 248 S.W. 902
• Parties: GURLEY v. STATE.
• Court: Arkansas Supreme Court

248 S.W. 902

GURLEY v. STATE.

(No. 209.)

Supreme Court of Arkansas.

March 5, 1923.

Rehearing Denied April 2, 1923.

Appeal from Circuit Court, Pulaski County; John W. Wade, Judge.

J. A. Gurley was convicted of embezzlement, and he appeals. Affirmed.

Lewis Rhoton and X. O. Pindall, both of Little Rock, for appellant.

J. S. Utley, Atty. Gen., and Elbert Godwin and W. T. Hammock, Asst. Attys. Gen., for the State.

HUMPHREYS, J.

Appellant was indicted, tried, and convicted of the crime of embezzlement in the First division of the Pulaski circuit court, and as punishment therefor was adjudged to serve one year in the state penitentiary, from which judgment an appeal has been duly prosecuted to this court.

The indictment, omitting formal parts, is as follows:

"The said J. A. Gurley on the 1st day of May, 1922, in the county and state aforesaid, then and there being over the age of sixteen years, and being the agent of E. T. Foster, and having then and there in his custody and possession as such agent, as aforesaid, eight hundred dollars ($800.00) gold, silver and paper money of a value of eight hundred dollars ($800.00), the property of the said E. T. Foster, did unlawfully, fraudulently and feloniously make away with and embezzle and convert to his own use the said sum of eight hundred dollars ($800.00) as aforesaid, without the consent of the said E. T. Foster, against the peace and dignity of the state of Arkansas."

The facts pertinent to the questions presented by this appeal for determination are as follows: E. T. Foster, at the instance of appellant, loaned Mrs. Anna Grantham $800, taking her note due January, 1921, to which bank stock was attached as collateral security. On December 8, 1920, appellant, as vice president of J. A. Gurley Company a corporation, advised E. T. Foster, who was then residing in Oklahoma City, Okl., that Mrs. Grantham wanted to know where she could pay the note, offering to handle the collection according to Foster's wishes. The note and attached collateral were in a lock box in a Memphis bank. E. T. Foster directed a friend to forward the note and collateral to appellant by registered letter, and wrote appellant to have Mrs. Grantham purchase and mail him a cashier's check for the amount due, and, when she did so, to deliver the note and collateral to her. Instead of doing this, appellant procured a check for the amount from Mrs. Grantham, payable to the J. A. Gurley Company, which he owned and managed, and upon receipt of said check delivered the note and bank stock to her. The check was deposited to the credit of J. A. Gurley Company, and checked out for company purposes, and not for a cashier's check, payable to E. T. Foster. J. A. Gurley, as vice president of J. A. Gurley Company, notified E. T. Foster of the collection by letter, stating therein:

"As soon as we get a return on her check, will forward cashier's check to you."

After the expiration of a month, failing to receive a remittance, E. T. Foster made written request of appellant to forward cashier's check, to which he received the following reply:

"J. A. Gurley Company, Investment Bankers.

                              "Little Rock, Ark. 3 — 1 — 21
                

"Mr. E. T. Foster — Dear Sir: I have your letter of February 17th and have carefully noted contents of same. I am going to tell it to you just as it is. I received Bank Stock just as they were sent from Memphis by registered mail, delivered same and bank check for collection. Now in the meantime my company issued stock and it was up to me to take the majority of the stock or lose control of my company, and in doing so I drew my bank balance below the $800.00 mark and it was continued below. I have about $5,000.00 in collection that are past due and have been expecting to get at least a sufficient amount of this to remit to you but have so far failed. I am responsible for the rule not to allow any officer of our company to borrow any money from the company, consequently I have not asked them to advance it to me. Now Mr. Foster, I am attaching a 10% note to $3,000.00 worth of my stock and am leaving the time open. I would like to have you make it six months, if entirely satisfactory to you. If you will give me the time you prefer I will mail you a check for the interest. It has not and is not my intention to misuse you in this matter and if the above arrangement is not entirely satisfactory I want you to notify me at once and will make a sacrifice somewhere and raise the money for...