Jackson v. State, 3 Div. 880.

CourtAlabama Court of Appeals
Citation31 So.2d 514,33 Ala.App. 42
Docket Number3 Div. 880.
Decision Date25 February 1947

Rehearing Denied March 18, 1947.

Bernard Lobman and Walter J. Knabe, both of Montgomery, for appellant.

A A. Carmichael, Atty. Gen., and John O. Harris, Asst. Atty Gen., for the State.

The indictment is as follows:

'(1) The Grand Jury of said County charge that before the finding of this indictment--Jesse Jackson feloniously took and carried away five ten-dollar bills of the lawful paper currency of the United States of America, of the value of fifty dollars, the personal property of Juanita Bolden.

'(2) The Grand Jury of said County further charge that before the finding of this indictment, Jesse Jackson, being the clerk agent or servant of Juanita Bolden, embezzled or fraudulently converted to his own use money to about the amount of fifty dollars, which came into his possession by virtue of his office or employment, against the peace and dignity of the State of Alabama.'

CARR Judge.

Appellant was tried in the court below under an indictment containing two counts, (1) grand larceny, (2) embezzlement. There was a general verdict of the jury, finding the defendant guilty as charged.

Both counts of the indictment meet all the requirements of the authorities, and the court properly overruled demurrers thereto. Title 15, Sec. 259, Form 66, Code 1940; Marshal v. State, 18 Ala.App. 483, 93 So. 236; Title 14, Sec. 126, Code 1940; Wall v. State, 2 Ala.App. 157, 56 So. 57.

The prosecuting witness testified that she addressed an envelope to her daughters, who resided in a distant city. In the enclosure she placed a letter and five tendollar bills. After informing the appellant of its contents, she requested him to mail the letter in the local post office. One of the daughters to whom the mail was addressed testified that she received the parcel with the letter enclosed, but the money was not contained therein; that she forthwith informed her mother of this fact by long-distance telephone.

The defendant, while testifying in his own behalf, admitted that he mailed the envelope as requested, but denied he took the money therefrom.

The general affirmative charge as to each count of the indictment was refused to the appellant.

Was this error as to the count charging larceny?

Because of the factual issues involved it sometimes becomes difficult to distinguish between the three kindred crimes: larceny, embezzlement, and false pretense. The Massachusetts Supreme Court in Commonwealth v. Barry, 124 Mass. 325, makes this distinction: 'If a person honestly receives the possession of the goods, chattels or money of another upon any trust, express or implied, and, after receiving them, fraudulently converts them to his own use, he may be guilty of the crime of embezzlement, but cannot be of that of larceny, except as embezzlement is by statute made larceny. If the possession of such property is obtained by fraud, and the owner of it intends to part with his title as well as his possession, the offense is that of obtaining property by false pretenses, provided the means by which they are acquired are such as, in law, are false pretenses. If the possession is fraudulently obtained, with intent on the part of the person obtaining it, at the time he receives it, to convert the same to his own use, and the person parting with it intends part with his possession merely, and not with his title to the property, the offense is larceny.' See also Murchison v. State, Ala.App., 26 So.2d 622; 11 A.L.R., Annotation, p. 801; Holbrook v. State, 107 Ala. 154, 18 So. 109, 54 Am.St.Rep. 65.

We will review some adjudicated cases that bear facts which are in many respects analogous to those in the instant case.

Washington v. State, 106 Ala. 58, 17 So. 546. The court held that one who is employed to haul coal from railroad cars and to deliver it to a designated place, and who has no other possession of the coal, is guilty of larceny if he sells a part of it with felonious intent and without the consent of the owner.

Crocheron v. State, 86 Ala. 64, 5 So. 649, 11 Am.St.Rep. 18. The owner intrusted the defendant, a hired man, with a mule to plow. The employee was charged with the duty to feed and water the animal. On the day in question he carried the mule to water, but, instead of bringing it back to the barn, delivered it to another person. The court held that the servant may be guilty of larceny by the fraudulent conversion of the mule to his own use.

Barney v. State, 5 Ala.App. 302, 57 So. 598. This court held that the charge of larceny was properly submitted to the jury under the following state of facts: The defendant was employed as a driver for a livery stable. In line with his employment he carried a Mr. Kitchens from Ashland to Lineville. Upon their arrival at Lineville, Mr. Kitchens handed the driver an overcoat with instruction that the latter deliver same to the former's home. The coat was not delivered as directed, nor did the owner ever recover it.

Holbrook v. State, 107 Ala. 154, 18 So. 109, 54 Am.St.Rep. 65. The accused was employed by a Mr. Wigginton to carry him by conveyance to the depot. Upon arrival at the station, Mr. Wigginton left a quilt with the driver, with instruction that it be returned to the former's home, with which request the defendant agreed to comply. Instead, however, he carried the quilt to a store and traded it for an amount much less than its value. Upon the basis of these facts, the court held that a larceny charge was properly hypothecated. See also Brown v. State, 30 Ala.App. 27, 200 So. 630; Rosenblum v. State, 19 Ala.App. 442, 98 So. 216.

These authorities and others we have considered leave us without doubt that the essential element of intent--the animus furandi--was properly submitted to the jury, and the evidence in its entirety made inapt the general affirmative charge as to the larceny count of the indictment. Verberg v. State, 137 Ala. 73, 34 So. 848, 97 Am.St.Rep. 17; Talbert v. State, 121 Ala. 33, 25 So. 690; May v. State, 16 Ala.App. 541, 79 So. 677; Lacey v. State, 13 Ala. App. 212, 68 So. 706.

The Assistant Attorney General in able brief insists that a general verdict is referable to the amount in the indictment that the proof sustains. If we should adhere to this position, it would not be required that we consider the questions as they relate to the second count. However, the rule urged does not have application if, as in the instant case, the general affirmative was requested as to each count of the indictment. A contrary view would deprive the appellant of a substantial right of review. Jones v. State, 236 Ala. 30, 182 So. 404; Hawes v. State, 216 Ala. 151, 112 So. 761; Brasher v. State, 21 Ala.App. 309, 107 So. 727.

We pass now to a consideration of the question of whether or not the court erred in refusing the general affirmative charge as to the embezzlement count. The count is based on Title 14, Sec. 126, 1945 Cumulative Pocket Part, Code 1940. It provides: 'Any officer, agent, clerk, employee or servant of any incorporated company, association of persons, partnership, or municipal corporation, or agent, clerk, employee, servant, or apprentice, of any private person or persons, who embezzles or fraudulently converts to his own use, or the use of another, or fraudulently secretes with intent to convert to his own use, or the use of another, any money or property which has come into his possession by virtue of his office, agency, employment, or apprenticeship, shall be punished, on conviction, as if he had stolen it.'

This section first appeared in Code 1852, Sec. 3143. With slight addenda it has been carried in each subsequently adopted code. The Legislature of 1945 added some descriptive words, among them 'employee', which is included in the part of the section with which we are now concerned. These additions indicate an intention and purpose on the part of the lawmaking bodies to make the section more illustrative, specific and inclusive.

It is at once apparent that in finding a correct answer to the instant inquiry, much will depend on the construction to be placed on the proper use and meaning of the word 'agent' found in the provision quoted above.

As one guide we will take a statement from the testimony of the defendant: 'I goes and gets the letter. I told her I would mail the letter when I came back from the store. She told me the letter contained fifty dollars, five ten-dollar bills, and she wanted me to drop them in the mail. I told her I wouldn't drop a letter in the box, I would register it. She didn't want it registered, she wanted it dropped in the mail box; I told her no, to register it, she would have a receipt, that I had sent letters and registered them. She asked me what it cost. And I went on and took the milk home and I returned and got the mail and went to town, and when I went to register the letter, the envelope didn't fill clean out to the end, and the lady told me if I was going to register that letter, she told me that she couldn't register that letter, because the whole seal, the end of the letter at each end did not seal all the way down, and I goes across the street, she wanted the letter to go off that night, and I took it, and went across the street and got an envelope, I went in to Mr. Hill's and he told me he didn't have any envelopes, nothing but those with Hill Grocery right on it, and there was a lady working at the store gave me an envelope, and I addressed that envelope just as she had it addressed, and I went to the lady and the lady gave me, and I paid her the money, and I gave her a five-dlloar bill and she gave me the change back out of it, and I went on and mailed it,...

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