Knight v. State

• Decision Date: 02 July 1907
• Citation: 44 So. 585,152 Ala. 56
• Parties: KNIGHT v. STATE.
• Court: Alabama Supreme Court

44 So. 585

152 Ala. 56

KNIGHT v. STATE.

Supreme Court of Alabama

July 2, 1907

Appeal from Circuit Court, Coosa County; S. L. Brewer, Judge.

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

See 41 So. 911.

D. H Riddle, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

SIMPSON J.

The defendant was convicted of the embezzlement of a part of a certain sum of money, which was delivered to him in Coosa county, to be taken to Talladega county and there deposited in a bank. When the case was before this court at a previous term it was held that, inasmuch as the evidence showed that the money was delivered to the defendant in Coosa county, to be carried to Talladega county, and that he did deposit a portion of the money in the bank in Talladega county, the court could not say as a matter of law that the embezzlement took place in Coosa county; also that, in order to a conviction, the burden was on the state to show that the money was embezzled in Coosa county.

Embezzlement is said to be "a sort of statutory larceny, committed by servants * * * where there is a trust imposed" (1 Bishop's Criminal Law [7th Ed.] § 567); or, as stated in the eighth edition of the same work, "a statutory larceny, created by an apparently bungling attempt to eliminate one of the elements from the common-law offense." Section 567 subd. 2. It is of statutory, not common-law origin; the first statute having been enacted in England during the reign of Henry VIII. The gravamen of the offense is that a person who has come rightfully into the possession of personal property as agent, etc., not being capable of committing a trespass which is a necessary element of larceny, yet fraudulently converts it to his own use, or fraudulently secretes it with intent to convert it to his own use, or the use of another. 2 Bishop on Criminal Law (8th Ed.) §§ 318, 372; Code 1896, § 4659.

While the elements of the offense are clear, it is sometimes difficult to determine just what evidence is necessary to establish the fact of embezzlement. 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 deprive the owner of the same, or to convert it to his own use. He must assume personal dominion of the property. Penny v. State, 88 Ala. 105, 7 So. 50; Henderson v. State, 129 Ala. 104, 29 So. 799. "There must be the actual and lawful possession or custody of the property of another, by virtue of some trust, duty, agency, or employment on the part of the accused; and, while so lawfully in the possession of such property, it must be unlawfully and fraudulently converted to the use of the person so in the possession and custody thereof." Reeves v. State, 95 Ala. 31, 41, 11 So. 158, 162, et seq. We do not understand the expression in the Henderson Case, supra, that "a mere failure to return money, * * * without evidence of a fraudulent appropriation or disposition, is not sufficient," to mean that it is necessary to show any actual appropriation of the money, as contradistinguished from keeping it himself. The English cases upon which that remark (taken from Bishop) is founded merely show that if a man fails to return a portion of the money, but acknowledges it and sets up a claim of a right to withhold it, that does not constitute embezzlement, or that the mere fact that the money had not reached the person to whom it was sent did not necessarily prove the offense. Rex v. Elizabeth Smith, Russ. & Ry. *267; Regina v. Norman, Car. & M. p. 501. They also hold that the rendering of an account from which the money is omitted furnishes evidence of embezzlement, as do also numerous modern cases. Regina v. Creed, 1 Kar. & Kir. 63; Rex v. Hall, Russ. & Ry. *463. They differ on the question as to whether absconding without settlement furnishes sufficient evidence. Rex v. Williams, 3 Car. & P. 338.

It is not necessary, then, to show what has become of the money, or that any disposition has been made of it, though, in the absence of any other proof, that might become an important circumstance. Eggleston v. State, 129 Ala. 80, 84 30 So. 582, 87 Am. St. Rep. 17. It was not necessary in this case to show what disposition was made of the money; but it was...