Kelley v. State

• Decision Date: 06 October 1981
• Docket Number: 3 Div. 365
• Citation: 409 So.2d 909
• Parties: Donald KELLEY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 909

409 So.2d 909

Donald KELLEY v. STATE.

3 Div. 365.

Court of Criminal Appeals of Alabama.

Oct. 6, 1981.

Rehearing Denied Nov. 24, 1981.

Certiorari Denied, Jan. 29, 1982

Alabama Supreme Court 81-201.

W. Clarence Atkeison & Kenneth Shinbaum, Prattville, for appellant.

Charles A. Graddick, Atty. Gen. and John Gibbs, Asst. Atty. Gen., for appellee.

BOOKOUT, Judge.

Embezzlement; sentence: five years' imprisonment.

Appellant, while serving as City Clerk and Treasurer of the City of Prattville, between October 1977 and September 1978, took female employees of the city clerk's office to lunch at the Prattville Holiday Inn on several occasions. None of the female employees who were taken to lunch actually saw how appellant paid for the meals. The appellant insisted that he paid cash; however, the circumstantial evidence was great that the bills were paid for with City of Prattville checks which had been signed by appellant and the mayor of Prattville in their official capacities. Under the principles enunciated in Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979), concerning circumstantial evidence, appellant's guilt or innocence became a jury question. See Dolvin v. State, 391 So.2d 133 (Ala.1980). It is not the function of this court to reweigh the evidence. Each element necessary to sustain a conviction for embezzlement was sufficiently proved. Pullam v. State, 78 Ala. 31 (1884).

I

We disagree with appellant's contention that reversible error occurred where his indictment did not state the precise time the offense was committed. Appellant argues, in essence, that since his indictment did not state the precise time the offense was committed he did not know whether to defend against embezzlement under Alabama Code §§ 13-3-20, 13-3-21 (1975) or against one of the theft of property crimes set out in Title 13A of the Alabama Criminal Code which became effective on January 1, 1980. Sections 13-3-20 and 13-3-21 were repealed for offenses occurring after the effective date of the Criminal Code.

For the sake of clarity, we set out here the first two counts of appellant's indictment which were considered by the jury. Count III of appellant's indictment was stricken by the trial court before the case was submitted to the jury. Omitting its formal parts, appellant's indictment reads:

"The Grand Jury of said County charge that, before the finding of this indictment Donald Kelley, whose name is to the grand jury otherwise unknown than as stated, while the City Clerk-Treasurer of the City of Prattville, Alabama, who was entrusted with the collection, receipt, safekeeping, transfer or disbursement of money or funds belonging to or under the control of a city or town, to wit: Prattville, Alabama, did convert to his own use or the use of another person or corporation, in a manner contrary to law, a portion of such money or funds, to wit: seven hundred thirty-nine dollars and thirty-five cents ($739.35), which said money or funds were paid to the Holiday Inn Prattville by the City of Prattville for meals charged by the said Kelley, against the peace and dignity of the State of Alabama.

"COUNT II

"The Grand Jury of said County further charge that, before the finding of this indictment, Donald Kelley, whose name is to the grand jury otherwise unknown than as stated, while an officer or employee, to wit: City Clerk- Treasurer, of a municipal corporation, to wit: Prattville, Alabama, did embezzle or fraudulently convert to his own use or the use of another money and checks or money or checks to the amount of about, to wit: seven hundred thirty-nine dollars and thirty-five cents ($739.35), and of that value, which said money and checks or money or checks were paid to the Holiday Inn Prattville by the City of Prattville for meals charged by the said Kelley, and which said money and checks or money or checks came into his possession by virtue of his office or employment, against the peace and dignity of the State of Alabama."

The general rule, and the rule that is controlling in the instant case, is that it is not necessary to state in an indictment the precise time an offense was committed. Alabama Code § 15-8-30 (1975). An exception to this rule arises if time is a material ingredient of the offense; however, that exception is not applicable here.

Appellant relies on Trent v. State, 15 Ala.App. 485, 73 So. 834 (1916), and other similar cases for the proposition that an indictment must aver the time an offense was committed if the indictment covers a period of time when two mutually exclusive statutes are in force and the court cannot say from the record which should be applied. In each case cited by the appellant, time was held to be a material ingredient of the offense. Without some averment of time stated in the indictment in those cases, it was not clear whether the accuseds were being prosecuted under a new statute or an old statute. The situation in the case at bar is distinguishable.

Initially it must be noted that Count I and Count II of appellant's indictment, which was returned against him on September 16, 1980, follow substantially the language in Alabama Code §§ 13-3-21, 13-3-20 (1975), respectively. From its plain reading, appellant's indictment specifically charges him with embezzlement and not with theft of property under § 13A-8-4. In fact, Count II charges with particularity that appellant "did embezzle." Thus, from the record, it can clearly be seen that the State was proceeding under §§ 13-3-20 and 13-3-21, and not under a new statute. Appellant in this case could not have been misled or in doubt as to the charge of which he was accused. Holt v. State, 238 Ala. 219, 193 So. 101 (1939). Since there can be no question that appellant was charged with embezzlement from the face of his indictment, appellant was put on notice that he was being charged for an offense occurring prior to 1980. Therefore, it was not necessary for appellant's indictment to state the precise time the offense was committed.

Assuming arguendo that time was a material ingredient of the offense in this case, we opine that this requirement was sufficiently met. Appellant's indictment charges with clarity in both counts that the offense of embezzlement occurred while he was City Clerk-Treasurer of the City of Prattville. This averment was necessary to establish that appellant was an agent, an essential element to embezzlement. Pullam v. State, 78 Ala. 31 (1884). It is also an elementary principle of law that an indictment must be proved as it is laid. Airhart v. State, 388 So.2d 211 (Ala.Cr.App.1979), cert. quashed, 388 So.2d 213 (Ala.1980). In other words, in order to prove a prima facie case against appellant, it was incumbent upon the State to prove that appellant committed the offense charged while he was City Clerk-Treasurer of the City of Prattville. Appellant admitted through his sworn testimony that his employment with the City of Prattville was terminated on November 16, 1979, well before the effective date of Title 13A. It becomes readily apparent that appellant's indictment apprised him of what time period he was accused of committing the specified criminal offense-that time period when he was Prattville City Clerk-Treasurer which was prior to 1980. Moreover, because appellant was apprised of the time period in question, he was necessarily apprised that the offense charged was embezzlement and not a Title 13A crime.

II

There is no merit to appellant's argument that the State improperly joined offenses in his indictment which were not subject to the same punishment. As stated earlier, only Counts I and II of appellant's indictment were submitted to the jury. These counts follow substantially the language in Alabama Code §§ 13-3-20, 13-3-21 (1975). The punishment for violation of either of these sections is the same: as if the person had stolen the money or property.

Appellant's argument that the State impermissibly charged twelve distinct and separate offenses, some of which were felonies and others which were misdemeanors, falters on authority of Willis v. State, 134 Ala. 429, 33 So. 226 (1901). Also see Troup v. State, 32 Ala.App. 309, 26 So.2d 611 (1946). In Willis the defendant embezzled small sums of money totaling about $306 over a period of approximately two years from time to time as it came into his possession. In addressing the identical issue we have before us, our supreme court wrote:

"The tendency of the evidence strongly supports the theory that the defendant systematically instituted a continuous series of withholding of his principal's money for the purpose of acquiring for his own use, ultimately, a large sum. Where this is the case, the doctrine of election does not apply, since the series of acts would constitute but one offense and each separate act would not be separate and distinct offenses....

....

"If proof was made that $25 or more was embezzled, the crime is punishable as grand larceny is punished...."

134 Ala. at 450, 454, 33 So.2d 226.

We find those principles announced in Willis and followed in Troup applicable in this case.

III

Appellant alleges that the trial court committed reversible error in allowing the State to introduce evidence, over objection, of his personal relationship with Mrs. Linda Williams, one of the female employees he took to lunch at the Holiday Inn. Testimony revealed that while appellant was indulging himself and others to lunch at city expense, he and Mrs. Williams indulged in indiscretions of a romantic nature in his office during working hours. Mrs. Williams was seen sitting in appellant's lap; the two were observed hugging, kissing, and embracing; and appellant was witnessed touching Mrs. Williams's breasts. Appellant argues that this evidence was irrelevant to the issue of embezzlement and was an attempt by the State to inflame the jury by showing him to be a person of bad character. The State counters that appellant's...