Lacy v. State

• Decision Date: 30 June 1915
• Docket Number: 194
• Citation: 69 So. 244,13 Ala.App. 267
• Parties: LACY v. STATE.
• Court: Alabama Court of Appeals

69 So. 244

13 Ala.App. 267

LACY v. STATE.

No. 194

Court of Appeals of Alabama

June 30, 1915

Rehearing Denied July 19, 1915

Appeal from City Court of Montgomery; Armstead Brown, Judge.

Theo Lacy, alias, was convicted of embezzlement, and he appeals. Affirmed.

The facts and the pleadings sufficiently appear in the case of Lacy against the state, in manuscript. The following charges were refused to the defendant:

(21) The court charges the jury that the burden is upon the state to convince you of defendant's guilt to the exclusion of every reasonable doubt, and by evidence that overcomes the presumption of fact that the law surrounds the defendant with that he is innocent of crime; and, if the state has failed to meet this burden, you cannot supply the defect by guessing what the truth is. Your verdict must be based on the evidence introduced in the case, and not on guesses, speculations, or suppositions.

(22) The defendant must be tried on the evidence, and the evidence alone, and unless the evidence and the evidence alone satisfies this jury beyond all reasonable doubt that he knowingly converted the money or a part thereof that was paid by Bernard Frank, then he cannot be convicted.

(23) The law presumes the defendant to be innocent of the commission of the offense charged in the indictment, and this presumption continues to go in favor of the defendant until the evidence convinces you beyond a reasonable doubt of his guilt, and you cannot find the defendant guilty of any offense charged in the indictment until the evidence in the case satisfies you beyond all reasonable doubt of his guilt and so long as you or any of you have a reasonable doubt as to the existence of any of the elements necessary to constitute the offense you should not find the defendant guilty.

(ZE) The law presumes that every person does his duty, and unless there is evidence that shows to a moral certainty that the defendant did not account to J.G. Oakley for the money received from Frank, then the jury should acquit the defendant.

(ZH) A mere failure to return money intrusted to an agent without evidence of a fraudulent conversion or disposition is not sufficient to constitute the crime of embezzlement.

(MC) The defendants should not be tried on suspicion or suppositions, but upon the evidence, and the evidence alone and unless this evidence, and this evidence alone, makes it morally certain that the defendant is guilty, he should be acquitted.

(XYZ) Before the jury can convict the defendant, they must believe beyond a reasonable doubt from the evidence that the money paid by Frank was neither accounted for by Lacy to Oakley, to the state, nor deposited in any bank to the credit of the convict department.

Rushton Williams & Crenshaw and Hill, Hill, Whiting & Stern, all of Montgomery, for appellant.

William L. Martin, Atty. Gen., and W.H. Mitchell, Asst. Atty. Gen., for the State.

THOMAS J.

All questions raised as to the insufficiency of the indictment were, it is conceded by appellant's counsel, determined adversely to this same appellant on his appeal in a companion case, wherein the indictment contained counts framed practically the same as here, and which were demurred to on grounds likewise practically the same as here. In holding, therefore, that the court did not err in overruling the demurrers, it is unnecessary to indulge in any discussion of the counts now attacked or of the demurrers attacking them, but it will be sufficient to cite, which we do, the case referred to, wherein our views as to these matters are fully expressed. Theo Lacy v. State, 68 So. 706.

The record discloses that the defendant pleaded the general issue and a number of special pleas of former jeopardy, upon which issue was joined by the state and a separate verdict returned against defendant, who declined in open court to offer any evidence in support of said pleas. No demurrers were filed to any of said pleas, but the judgment entry recites that the solicitor made a motion to strike certain portions of these pleas, which motion was granted. Whether the court erred in doing so we are unable to determine, since neither the record proper nor the bill of exceptions sets out said motion nor discloses what...