Hall v. State

• Decision Date: 03 December 1923
• Docket Number: 24
• Citation: 257 S.W. 61,161 Ark. 453
• Parties: HALL v. STATE
• Court: Arkansas Supreme Court

257 S.W. 61

161 Ark. 453

HALL v. STATE

No. 24

Supreme Court of Arkansas

December 3, 1923

Appeal from Pulaski Circuit Court, First Division; John W. Wade Judge; affirmed.

Judgment affirmed.

Kirby & Hays, for appellant.

J S. Utley, Attorney General, John L. Carter, Wm. T Hammock and Darden Moose, Assistants, for appellee.

OPINION

HART, J.

W. H. Hall prosecutes this appeal to reverse a judgment and sentence of conviction against him for the crime of grand larceny.

The indictment contains two counts, and it is insisted that the circuit court erred in not requiring the prosecuting attorney to elect on which count he would try the defendant.

Under the first count, W. H. Hall is charged with the crime of grand larceny, committed by feloniously taking and carrying away $ 1,631.97, the property of J. B. Ford Company, a corporation.

In the second count W. H. Hall is accused of the crime of embezzlement by wrongfully converting to his own use $ 1,631.97 belonging to the J. B. Ford Company, a corporation, which was in his possession as bailee for said corporation.

The court refused to require the prosecuting attorney to elect, and the defendant was tried for grand larceny and embezzlement at the same time. The trial resulted in an acquittal on the embezzlement charge and in a conviction on the larceny charge.

There was no error in refusing to require the prosecuting attorney to elect. Under § 3016 of Crawford & Moses' Digest, larceny and embezzlement may be charged in one indictment. The evident purpose of the statute was to enable the State to embrace in one indictment a charge for larceny and embezzlement where the charge resulted from the same transaction and it might be doubtful whether the proof would fit the one charge or the other. Larceny and embezzlement belong to the same family of crimes. If the actual or constructive possession of the property was in the owner, then the wrongful conversion would be larceny, and not embezzlement. There must be lawful possession in the defendant at the time of the conversion to constitute embezzlement. The distinguishing feature of embezzlement is that the taking essential to larceny is not required, a breach of trust taking its place.

The charge of larceny and that of embezzlement in the present case grew out of the same transaction and related to the same warrants. Hence, under the statute, they were properly charged in the same indictment, and the two charges might be tried together, just as, under a different subdivision of the same section, forgery and the uttering of a forged instrument may be joined in the same indictment and the defendant tried on both charges at the same time, where they grew out of the same transaction and related to the same instrument. Zachary v. State, 97 Ark. 176, 133 S.W. 811. Where the statute authorizes two offenses of a kindred nature to be joined in one indictment, and they would be proved by substantially the same evidence, or evidence connected with a single line of conduct, it necessarily follows that the defendant's rights are not jeopardized by a single trial. Therefore we hold that this assignment of error is not well taken.

It is next insisted that the evidence is not legally sufficient to sustain the verdict. According to the evidence for the State, W. H. Hall was chairman of the Board of Control for State Charitable Institutions in the State of Arkansas during the period of the transactions involved in this case. Vouchers were issued to the J. B. Ford Company, a corporation, in the sum of $ 1,631.97 for merchandise and supplies sold to the State by said corporation. After these vouchers had been issued by the Board of Control, of which W. H. Hall was chairman, they were filed with the Auditor of State, as required by the statute, and warrants were drawn by him on the State Treasurer for said amounts. These warrants were carried to the office of the State Treasurer and were there paid by him to the person having the warrants in his possession. The Treasurer required the person having possession of the warrants to indorse the same before he would pay them.

According to the testimony of the warrant clerk in the Treasurer's office, warrant No. 17, issued on January 3, 1922, for $ 975.80, payable to the J. B. Ford Company, is shown by the record to have been paid to W. H. Hall on January 7, 1922. The warrant clerk also exhibited the original warrant, and it bears the indorsement of W. H. Hall.

It is also shown that other warrants payable to the same corporation were paid by the Treasurer to the stenographer of the defendant Hall. It is also shown that warrants issued to other persons for merchandise furnished by them to the State were presented by the defendant for payment at the State Treasurer's office, and that the money was paid to him.

It was shown by the employees of the J. B. Ford Company that W. H. Hall had no authority to collect the money due that corporation on said warrants. It was also shown by numerous other persons that W. H. Hall presented warrants which had been issued to them at the office of the State Treasurer, and that these warrants were paid to him. The said defendant had been given no authority to collect said warrants.

According to the testimony of a stenographer who worked in the office of the Board of Control since November, 1921, she was there for about five months during the time that the defendant was chairman of the Board of Control, and before he resigned his office. She receipted for the warrant for $ 975.80 which had been issued to the J. B. Ford Company, and gave the warrant to the defendant. She sometimes cashed warrants, which had been issued to persons who had sold merchandise to the State charitable institutions, at the State Treasurer's office, but did this because the defendant told her to do so. In each instance she gave the money which she received at the State Treasurer's office, by cashing the warrants, to the defendant, and never gave any money to any other member of the board. No other member of the board except the defendant ever handled any of the warrants issued to merchants who had sold supplies to the State charitable institutions under contracts made with the Board of Control. The witness receipted for the warrant for $ 975.80 issued to the J. B. Ford Company, and gave the warrant to the defendant. She knew that she did not cash the warrant, because her name is not indorsed on it.

Evidence was introduced by the defendant tending to show that he was insane during the period of time involved in these transactions. He resigned his office in March, 1922, and was confined in the State Hospital for Nervous Diseases for some time thereafter. Various members of the medical staff in the hospital and other physicians testified that the defendant was insane from the excessive use of alcoholic liquors, or perhaps from other causes. Some of these experts state that, while they observed that the defendant was addicted to the excessive use of intoxicating liquors for some time before he resigned, they could not state that he was insane on this account, or for any other reason.

Other witnesses testified that the defendant was addicted to the excessive use of alcoholic liquors for some time before he resigned, and that such excessive use showed itself in various ways in the conduct of his office, but that they could not state that he was insane at the time. The peculiarities of his conduct might only have resulted from his excessive use of intoxicating liquors, and not from insanity caused thereby.

The above is a brief recital of the substance of the evidence adduced in favor of the State and for the defendant. After a careful consideration of the evidence as it appears in the record, we are constrained to hold that the jury was warranted in returning a verdict of guilty on the larceny count of the indictment.

Under the above testimony there was no variance between the allegations of the indictment and the proof. On the first count the grand jury accused the defendant of the crime of grand larceny by feloniously taking and carrying away $ 1,631.97 in gold, silver, and paper money of that value, the property of J. B. Ford Company, a corporation.

The evidence for the State showed that a warrant for $ 975.80 was issued on the State Treasury on January 3, 1922. This warrant was issued on a claim allowed by the Board of Control in favor of the J. B. Ford Company, for merchandise which it had sold the State under a contract with the Board of Control.

It appears from the testimony of the warrant clerk in the State Treasurer's office that this warrant was presented at that office, and the warrant clerk testified that it was paid by the State Treasurer to W. H. Hall. The original warrant was exhibited, and bore his indorsement. The office always required the one who received money on a warrant to indorse the warrant.

Here we find that the witness testified that the State Treasury paid the amount of the warrant to the defendant, and that the defendant received the amount of money which the face of the warrant called for. The warrant was issued on the Treasurer for the amount found to be due to the J. B. Ford Company, on the claim in its favor allowed by the Board of Control, for merchandise sold by that company for the use of the State charitable institutions. The warrant was issued pursuant to § 9332 of Crawford & Moses' Digest.

A stenographer testified that she had cashed warrants at the office of the State Treasurer, at the request of the defendant, and delivered the money which she received to the defendant. These warrants were issued to merchants who had furnished supplies to the State, under contracts with the Board of Control, and vouchers for the amounts of their...