Knight v. State

• Decision Date: 06 July 1906
• Citation: 147 Ala. 104,41 So. 911
• Parties: KNIGHT v. STATE.
• Court: Alabama Supreme Court

41 So. 911

147 Ala. 104

KNIGHT v. STATE.

Supreme Court of Alabama

July 6, 1906

Appeal from Circuit Court, Coosa County; A. H. Alston, Judge.

"To be officially reported."

Jim Knight was convicted of embezzlement, and he appeals. Reversed.

The judgment of the court is as follows: "April 18, 1906. On this day came W. B. Bolling, solicitor of the Fifth judicial circuit of Alabama, and also comes the defendant in his own proper person and by his attorney, and being arraigned upon said indictment and for his plea thereto the defendant says that he is not guilty. Issue being joined upon said plea, and after hearing the evidence, thereupon came a jury, etc., who upon their oaths say: 'We, the jury, find the defendant guilty as charged in the indictment.' It is therefore considered and adjudged by the court that the defendant, Jim Knight, is guilty as charged in the indictment, and the state of Alabama, for the use of Coosa county, have and recover of Jim Knight the cost of this prosecution, for which let execution issue. Again, on this 18th day of April into open court comes the defendant, Jim Knight, in his own proper person. Being asked by the court if he has anything to say why the sentence of the law should not now be pronounced upon him, says nothing. It is therefore considered," etc. The bill of exceptions contains the following: "The defendant was arraigned in the following manner: The state announced ready for trial, and the defendant announced ready for trial, and after the jury had been selected and impaneled, the solicitor read the indictment to the jury in the presence of the defendant, and the defendant's counsel announced to the jury in the presence of the defendant in open court that the defendant pleads not guilty. The defendant raised no objection to the manner of this arraignment, or any of the preliminary proceeding had in this cause." The evidence showed that Kilgore paid defendant 15 cents for taking $163 for him from his place of business at Weogufka, in Coosa county, to the Merchants' &amp Planters' Bank at Sylacauga, in Talladega county, to be deposited in said bank to the credit of Kilgore, and that he deposited only $110 in money and a $3 check. It further appeared from the evidence that the defendant was a mail carrier, and that he received from Kilgore compensation on several occasions for carrying money to Sylacauga and depositing it.

The court at the conclusion of the testimony gave the general affirmative charge to the state, and refused like charges for the defendant. Defendant also requested charges requiring the jury to believe that the offense was committed in Coosa county before conviction, and also charges requiring an acquittal of defendant if they had a reasonable doubt as to whether the crime was committed in Coosa or Talladega county. Charge 9 was as follows: "I charge you that if you believe from the evidence in this case that the defendant was in the habit and had been regularly engaged to carry money by Kilgore to the bank at Sylacauga and deposit it in Kilgore's name subject to draft, and that the money described in the indictment was delivered to him in this way and for this purpose, that the transaction would constitute the defendant the common carrier, and from the time the money was delivered to the defendant, to be delivered to the bank the money was the property of the bank, and the defendant could not be convicted as charged in the indictment." This charge was refused.

D. H Riddle, for appellant.

Massey Wilson, Atty. Gen., for the State.

SIMPSON J.

The defendant in this case was convicted under an indictment charging embezzlement. No demurrer was interposed to the indictment, nor any supposed defects brought to the attention of the court in any legal way. Code 1896, § 4895; 10 Ency. Pl. & Pr. 564. The record sufficiently shows a continuous proceeding and the presence of the defendant throughout the trial. Sudduth v. State (Ala.) 27 So. 487. The arraignment is also sufficiently shown. Fernandez & White v. State, 7 Ala. 511.

It is claimed that there is a variance between the allegations in the indictment and the proof, in that the indictment gives the name of the...