Heath v. State

• Decision Date: 12 June 1944
• Docket Number: 4354
• Citation: 181 S.W.2d 231,207 Ark. 425
• Parties: Heath v. State
• Court: Arkansas Supreme Court

181 S.W.2d 231

207 Ark. 425

Heath v. State

No. 4354

Supreme Court of Arkansas

June 12, 1944

Appeal from Lafayette Circuit Court; Dexter Bush, Judge.

Affirmed.

Ned A. Stewart, for appellant.

Guy E. Williams, Attorney General, and Oscar E Ellis, Assistant Attorney General, for appellee.

Knox Justice. McFaddin, J., disqualified and not participating.

OPINION

Knox Justice.

From a judgment entered in conformity with a verdict finding him guilty of embezzlement appellant prosecutes this appeal.

The evidence, when we view it, as we must, in the light most favorable to the state, discloses that the prosecuting witness, Jim Powell, and his wife, reside, and at all times mentioned have resided, in Lafayette county, about eight miles north of Lewisville. In January, 1942, appellant came to their home, and represented himself to be a wealthy oil man from Texas, who owned interests in several wells, a refinery and, also, owned a large place on the Gulf Coast. Declaring that he was attempting to secure oil and gas leases covering lands in the vicinity for the purpose of drilling a well in search of oil and gas, he urged Mr. and Mrs. Powell to rent him a room so he would be situated near the scene of his activities. They at first refused, but after much persuasion finally admitted appellant to their home. The prosecuting witness and his wife are devout Christians. Appellant by his words and conduct assumed the role of a devout Christian also. Mr. Powell testified that appellant's attitude and protestations of faith were such as to induce him to believe that appellant "was as good a man as (he Powell) was ever around," and that he thereby fully gained Powell's confidence.

Appellant and his wife lived in the Powell home nearly two months. Almost every week end appellant would make a trip to Texas. Appellant advised Powell that he had received advance confidential information indicating that certain wells then being drilled in Texas would likely be producers of oil. Appellant explained to Powell that such information made it possible for him to, and that in repayment of favors shown him by Powell he would, if Powell so desired, take some of Powell's money to Texas and purchase in Powell's name and for his account royalty interests in land located near these wells, and that later when the probability of production in these wells had become generally known he would assist Powell to sell this royalty at a substantial profit. After talking the matter over with his wife, Powell decided to avail himself of the services, knowledge and experience of his newfound friend, and take a flier in Texas royalty to the extent of $ 2,000. He tendered appellant a check in this amount, but appellant insisted upon cash, thereupon, Mr. and Mrs. Powell drove into Lewisville and appellant followed in his car. Both cars were parked in front of the bank. Mr. Powell went in alone and withdrew $ 2,000 from his account, came outside and delivered it to appellant in Mrs. Powell's presence. Thereupon, appellant made and signed a promissory note on a printed form which he had with him in the principal sum of $ 2,000, bearing interest at 8%, due 60 days from date, and delivered the same to Powell. Powell says that he had requested no such instrument, but that appellant "just volunteered to write out a paper, claiming there were so many accidents, and a fellow never knew what would happen, and he fixed the paper so if anything happened while he was gone, we could take it into the bank and collect the money, if he got killed or anything happened." Both Powell and his wife deny that the transaction was a loan, appellant on the other hand insists that he borrowed the money and that all parties understood that it was a loan of money -- and that the relation between him and Powell was that of debtor and creditor.

Appellant went to Texas. When he returned he told Mr. and Mrs. Powell that he had procured the royalty, and that as soon as he got everything straight he would take them to Texas where they would sell enough to get their money back and hold the rest. From time to time thereafter, upon returning from various trips to Texas, appellant explained that the royalty deals had been held up because of delay in getting the abstracts of title.

Appellant admits that he obtained $ 2,000 from Powell, but he insists that the transaction was a loan; he testified that he agreed to pay Powell interest at the rate of 8% per annum, and also give him a $ 100 bonus for the loan of the money for a period of sixty days. He testified that at the time he obtained the money he intended to invest it in Texas royalty -- not for Powell but for himself -- that he had previously told Powell that such was his intention; that upon obtaining the money he went to Texas, but did not buy royalty, because the well being drilled by Shell Petroleum Company, in the vicinity in which he had expected to buy royalty had begun to look unfavorable as a potential producer of oil; that he invested $ 700 in oil leases, and paid personal debts with the remaining $ 1,300.

At the close of the state's case, appellant moved for a directed verdict of not guilty because (1) "the state has failed to prove venue in Lafayette county"; (2) "the state has failed to prove that the defendant took the property with the intention to embezzle same" and (3) "Jesse Powell accepted from the defendant a promissory note for $ 2,000, the money involved herein."

The motion was overruled and exceptions saved. At the close of the whole case the motion was renewed, again overruled and exceptions saved. The action of the court in overruling the motion for a verdict of acquittal is the sole ground relied on for reversal here.

We prefer to discuss the three reasons urged in support of the motion for a directed verdict in inverse order to the way they are set out in the motion.

The third reason presented in the motion is that "Powell accepted from the defendant a promissory note for $ 2,000, for the money involved herein."

As was said in Morgan v. State, 169 Ark. 579, 275 S.W. 918: "A charge of embezzlement could not be predicated upon the mere failure to repay loans" -- so if the transaction between Powell and appellant amounted merely to a loan of money, and created between them a relation of debtor and creditor, the appellant could not be guilty of embezzlement. The fact that appellant executed and delivered a note, and Powell accepted the same, is evidence that the transaction was in fact a loan -- but it is not conclusive evidence of that fact. Evidence was offered by the state relative to the circumstances surrounding the making and delivery of such instrument, from which the jury could have found that no loan was made by Powell to appellant. The issue, therefore, was, and properly should have been, submitted to the jury, and the court did not err in denying appellant's motion for a directed verdict on this ground.

The second reason assigned by appellant in support of his motion for a directed verdict is "that the state has failed to prove that the defendant took the property...