Kramer v. State
| Citation | 78 So. 719,16 Ala.App. 456 |
| Decision Date | 26 February 1918 |
| Docket Number | 6 Div. 935 [a1] |
| Parties | KRAMER v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied April 3, 1918
Appeal from Circuit Court, Cullman County; R.C. Brickell, Judge.
Joe H Kramer was convicted of larceny by embezzlement, and he appeals. Reversed and remanded.
F.E. St. John, of Cullman, and Allen & Bell, of Birmingham, for appellant.
F. Loyd Tate, Atty. Gen., and Emmett S. Thigpen, Asst. Atty. Gen for the State.
The Supreme Court, in reviewing the opinion of this court heretofore promulgated, on certiorari (77 So. 353), only deal with the question of the sufficiency of the proof to sustain the averments of the indictment that the defendant was an officer of the bank, which under the indictment and the statute was an essential element of the offense charged against him. Code, § 6830; Pullam v. State, 78 Ala 31, 56 Am.Rep. 21. We therefore adhere to the pronouncement in the former opinion that Acts 1911, pp. 50 to 86, did not effect a repeal of section 6830 of the Code. Kramer v. State, 75 So. 185.
Among other witnesses examined in behalf of the state was one Mobley, an expert accountant, whose evidence on the examination in chief tended to show that two items of $1,000 each transmitted to the bank were received by the defendant as assistant cashier by express, and that he had failed to make proper entries upon the books of the bank crediting these items to the account of the Traders' National Bank, from whom they were received, and that these entries were not made on the books of the bank until after the witness had called the attention of the defendant to the omission. He thereafter made the entries. This witness was further examined minutely by the solicitor as to what was shown by the books of the bank with reference to the cash on hand and other matters tending to show that the defendant had embezzled the amount of one of these remittances.
The defendant proposed to show by this witness on cross-examination that the books of the bank contained evidence showing what disposition was made of the money received from the Traders' National Bank, and that such evidence would show that the defendant did not embezzle this money. On objection of the solicitor, which was sustained by the court, this right was denied the defendant, and in this the court committed reversible error. Pollack v. Gunter & Gunter, 162 Ala. 317, 50 So. 155; Wefel v. Stillman, 151 Ala. 289, 44 So. 203. If this money was paid out in due course of business, or was loaned by the bank to its customers or other officers, without criminal knowledge or connivance of the defendant, he should not have been convicted of embezzling this money.
On the other hand, if the money was embezzled by others with the assistance and connivance of the defendant, the mere fact that he did not receive the fruits of the crime would not exculpate him. Lacey v. State, 13 Ala.App. 225, 68 So. 706.
The state offered evidence tending to show that during the years 1913 and 1914, the defendant, while in charge of the business of the bank as assistant cashier, credited to his own personal account and to the account of the Imperial Bowling Alley and the Ala.-Cola Bottling Company, concerns in which he was pecuniarily interested, with certain items without deposits being made corresponding therewith, and the evidence tended show that through the connivance of the defendant these accounts had been drawn on, and that the bank had actually paid out $800 more than had been deposited, as shown by the books of the bank. Therefore it was a question for the jury as to whether or not the defendant embezzled the money of the bank, and, as we have said, it is wholly immaterial whether he received the fruits of the crime himself, or whether others profited...
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