Huffman v. State

• Decision Date: 30 May 1890
• Parties: HUFFMAN v. STATE.
• Court: Alabama Supreme Court

8 So. 28

89 Ala. 33

HUFFMAN v. STATE.

Supreme Court of Alabama

May 30, 1890

Appeal from city court of Montgomery; THOMAS M. ARRINGTON, Judge.

The indictment in this case contained three counts, each of which charged, in varying phraseology, that the defendant, being the bailee or agent of Sells Bros., "did embezzle, or fraudulently convert to his own use, money to about the amount of $150, the personal property of said Sells Brothers, which came to his possession by virtue of said employment." The defendant demurred to the indictment, because "it does not allege the value of the money embezzled, and because it does not allege the description or character of the money." The court overruled this demurrer, the defendant excepted, and thereupon pleaded not guilty. He also moved in arrest of judgment, on account of the insufficiency of the verdict, but this motion was overruled, and he excepted.

John G. Finley, for appellant.

W. L. Martin, Atty. Gen., for appellee.

STONE, C.J.

The indictment in this case pursues the form given in the Code, and is sufficient. 2 Code, form 39, p. 270, (§ 3810.) The verdict in this case must be classed as a special one. Its language is: "We, the jury, find the defendant guilty of embezzlement of a sum of money less than twenty-five dollars." When a special verdict is found it must affirm every material ingredient of the offense, or no judgment can be rendered upon it. Under the authorities we are not able to affirm that anything was found except what was expressed. Hence we are not permitted to know or to infer that the finding implied that the money embezzled was the property of Sells Brothers, or that it was embezzled in Montgomery county, Ala. Clay v. State, 43 Ala. 350; Lee v. Campbell, 4 Port. (Ala.) 198. If the verdict had been, "We, the jury, find the defendant guilty," or "guilty as charged," and had then added, as a further finding, the value of the property embezzled, this would have been a general verdict, and would have been held sufficient. The finding in such case would be referred to the indictment. This may seem to be a narrow point, but we are unwilling to depart from former rulings. The testimony of what Scott paid in Georgia, and of the freight paid on the ostriches, could shed no light on the question of the defendant's guilt, and was improperly admitted. Reversed and remanded.