Hurst v. State
| Decision Date | 20 April 1926 |
| Docket Number | 8 Div. 381 |
| Citation | 108 So. 398,21 Ala.App. 361 |
| Parties | HURST v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Colbert County; C.P. Almon, Judge.
Robert Hurst was convicted of embezzlement, and he appeals. Reversed and remanded.
Bradshaw & Barnett, of Florence, for appellant.
Harwell G. Davis, Atty. Gen., and Chas. H Brown, Asst. Atty. Gen for the State.
The indictment was not subject to any of the demurrers interposed. Code 1923, § 3960; Walker v. State, 117 Ala. 42, 23 So. 149.
The defendant was employed by the Dirago Candy Company of Tuscumbia to sell candy on commission. The defendant lived in Lauderdale county, and sold candies for his employer to customers in Colbert, Lauderdale, and Franklin counties. To all of these customers defendant made deliveries of the candies sold, sometimes collecting at the time of delivery and sometimes extending credit. Each transaction was supposed to be reported to Dirago Candy Company, and return of the cash collected made. The employment continued for several months, when the defendant either quit or was discharged after which Dirago claimed that defendant had not accounted for all of the money received by him in payment of the candies sold, claiming a shortage of some $1,200. Upon the trial, the jury found the amount of the shortage to be less than $25. The defendant proved a good character, and claims that there is still due him some amount as commissions. The transactions covered several months, and embraced a large number of items and accounts with many different people, but there is no act of fraudulent conversion or appropriation shown to have taken place in Colbert county, and in fact the only evidence of any sort of conversion may be said to be the inference to be drawn from the testimony of Dirago that he delivered the candy and failed to receive the cash for it.
The criminal law was never designed to enforce the payment of debt nor to adjudicate mere civil disputes between parties and where, by reason of contractual relations, differences in accounts arise and a criminal prosecution is resorted to, the state will be held to the strict rules of proof in making out its case against the defendant.
In the case of Henderson v. State, 129 Ala. 104, 29 So. 799, the defendant was given money by the prosecutor in Pike county, for the purpose of buying a ticket in Bullock county for a workman he was to bring from there back to Pike county on the following Thursday. He neither brought the workman nor returned the money. The court held:
"There is an absence of evidence to show that any conversion or appropriation of the money occurred in Pike county."
A mere failure to return the money intrusted to an agent, without evidence of a fraudulent appropriation or disposition, is not sufficient to constitute the crime. 2 Bish. New Crim.Law par. 376. In Knight v. State, 152 Ala. 56, 44 So. 585, the court in a case similar to the case at bar held that the burden was on the state to show that the money then charged to have been embezzled was in fact embezzled in Coosa county. While the elements of the offense of embezzlement are clear, it is sometimes difficult to determine just what evidence is necessary to establish the crime. There must at least be some act indicating an intent to segregate the property from that held by the defendant as agent, and hold it for himself or to deprive the owner of the same, or to convert it to his own use. He must, with a knowledge of the fact that the property is that of his employer, assume...
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