Hampton v. State
| Decision Date | 03 April 1911 |
| Docket Number | 14,851 |
| Citation | 54 So. 722,99 Miss. 176 |
| Court | Mississippi Supreme Court |
| Parties | O. O. HAMPTON v. STATE |
APPEAL from the circuit court of Lafayette county, HON.W. A. ROANE Judge.
O. O Hampton was convicted of embezzlement and appeals.
The facts are fully stated in the opinion of the court.
Reversed and remanded.
Cassedy & Butler, for appellant.
We say that the motion to direct a verdict for appellant because of the fact of the American Express Company being a corporation should have been sustained. Certainly this is true unless the district attorney should have availed himself of the right to amend the indictment to conform to the proof unless all precedent shall be ignored; the substantial rights of one charged of a serious offense shall not be lost sight of in the sometimes desperate effort on the part of prosecuting counsel to secure an unrighteous verdict. It will be noted that the indictment is explicit in its charges of embezzlement from the American Express Company, a corporation, whereas from the proof by the testimony of the state witness himself, it is conclusively established that the American Express Company is not a corporation, but to the contrary a partnership.
The crimes of larceny, burglary, robbery, false pretenses embezzlement, receiving stolen goods, etc., are all frauds and cheats and the same essential elements exist in each. They are governed by the same rules of practice and procedure, founded upon one and the same base. Mr. Bishop says that the rule as to ownership of property is the same in arson, burglary, cheats, false pretenses, conspiracy embezzlement, malicious mischief, forgery, receiving stolen goods, robbery and larceny. Bishop Crim. Proced., 719, also 2 Bishop Crim. Proced., 36, 137, 173, 211-233, 320, 424, 983 and 1006.
He further lays the rule down at section 723 that Now embezzlement is simply a statutory larceny. (2 Bishop on Crim. Law 318.)
In 2 Bishop Crim. Proced., at 320 it is said, Tatum v. State, 50 So. 490; McLain on Crim. Law, vol. 1, § 707; 2 Bishop on Crim. Proced., 718; James v. State, 77 Miss. 370; McGuire v. State, 91 Miss 151; Froman v. State, 95 Miss. 77; Richburger v. State, 90 Miss. 806.
We say the court erred in permitting witness Hunter to testify to the conversation between him and the appellant and between him and the depot agent and his acts in reference to calling at the bank and getting a package of money and depositing it in the pony safe. Molineaux v. People, 62 L. R. A. 194; Herman v. State, 75 Miss. 340; Raines v. State, 81 Miss. 489.
The fifth instruction in this case is absolutely vicious. It is as follows: "The court charges the jury for the state that if they 'believe from the testimony in this case beyond a reasonable doubt that the defendant had collected certain sums of moneys, no matter what amount, which was then and there the property of the American Express Company and that said moneys were never given to or remitted to the said company then it devolves upon the defendant to give a reasonable explanation of what became of said moneys, and unless said explanation creates in the minds of the jury, a reasonable doubt of the defendant's guilt, then it is the duty of the jury to convict the defendant, provided they believe from all the testimony in the case beyond a reasonable doubt that the defendant is guilty as charged in the indictment.'" This instruction is erroneous for several reasons. In the first place, it predicates embezzlement absolutely upon the mere failure to pay over whereas according to every definition of embezzlement laid down in the law books, the crime consists of something more than this. There must be a fraudulent appropriation, a fraudulent secretion, a fraudulent concealment, a fraudulent conversion or a fraudulent making way with in order to constitute the crime. To constitute a crime the appropriation of the property must be made with the same intent to deprive the owner with which the taking must be done to constitute larceny at common law.
It is erroneous, however, for another reason. It is a contradiction in terms. Thus the jury is told that unless the reasonable explanation creates a reasonable doubt of guilt then it is the duty of the jury to convict, provided they believe from all the testimony in the case beyond a reasonable doubt that the defendant is guilty. What does this mean? If the explanation renders guilt doubtful then it is a mental and moral impossibility for all the testimony to place guilt beyond a reasonable doubt. This feature of the instruction was condemned in Pollard v. State, 53 Miss. 410.
Kimbrough and Slough, for appellant.
An indictment for embezzlement must show the ownership of the property alleged to have been embezzled with the same particularity as in a prosecution for larceny and unless the proof supports the allegation of ownership in an indictment for embezzlement there can be no valid conviction. Polkinghouse v. State (Miss. 1890), 7 So. 347, also 68 Miss. 348.
The identity of the owner of the property in embezzlement is very material and should be properly laid and proven. Clarks Criminal Procedure, page 229 at top of page. Also, 22 S.W. 955 (Ark.), 58 Ark. 17.
Since it is alleged in the indictment in this case that the owner of the property alleged to have been embezzled was a corporation, it becomes necessary to prove the averment "as descriptive of the offense charged." See Tyler v. State, 69 Miss. 395; John, a slave, v. State, 24 Miss. 569, and Dick v. State, 30 Miss. 631.
The court should not have given the instructions as asked by the state.
The court should have sustained the motion to exclude the testimony and discharge the defendant because of the fatal variance between the indictment and the proof. Also the court should have sustained the motion in arrest of judgment, and motion for new trial, and discharged the defendant for the reasons set out therein.
Carl Fox, assistant attorney-general, for appellee.
It is contended by counsel for appellant that this case should be reversed because there was a variance between the indictment and the proof, the indictment alleging that the money embezzled was the property of the American Express Company, a corporation, and the proof being that it was a joint stock company or a partnership. Under section 1508 of the Code of 1906, this indictment could have been amended to accord with the proof. If appellant was not prejudiced by the failure to amend the indictment then this case ought not to be reversed on that ground. No continuance was asked for, no suggestion made that defendant was in any way prejudiced by the variance.
In Richberger v. State, 44 So. 772, it was held, as is correctly stated in the syllabus, that "where an indictment is amended without the entry of the authorizing order on the court's minutes as required by Code of 1906, section 1509, the court, on objection being made, even as late as a motion for a new trial, is authorized to make the entry nunc pro tunc."
In the case of Peebles v. State, 55 Miss. 434, it was held that if the defendant does not ask for a continuance upon the amendment of the indictment, he cannot afterwards object that he was surprised and prejudiced in his defense thereby.
The only other contention made here which I desire to answer is that the fifth instruction granted the state is erroneous. I do not think the instruction is correct. However, section 1136, under which the indictment was drawn, provides that if any agent, etc., "shall embezzle or fraudulently secrete, conceal or convert to his own use or make way with or secrete with intent to embezzle or convert to his own use any goods, etc., . . . he shall be guilty of embezzlement." Now, the defendant admitted having the money which he was charged with embezzling; he admitted that he did not turn it over when demanded. His defense and his only defense was that the money had been robbed was not true then he had concealed or had made way with the money. I frankly confess that I have no faith in that argument. However, if the court can say, under the peculiar facts of this case, that defendant was not prejudiced, then the...
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