Lambert v. State, 57248
| Decision Date | 02 December 1987 |
| Docket Number | No. 57248,57248 |
| Citation | 518 So.2d 621 |
| Parties | Jerry V. LAMBERT, Sr. v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Earl B. Stegall, Gulfport, for appellant.
Edwin Lloyd Pittman, Atty. Gen. by DeWitt Allred, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before HAWKINS, P.J., and PRATHER and ZUCCARO, JJ.
Jerry V. Lambert, Sr., was found guilty of embezzlement by the Circuit Court of Jackson County, and sentenced to four (4) years imprisonment. From this adverse sentence, Lambert appeals, making four (4) assignments of error. Finding no error, we affirm.
A cashier at a Pascagoula grocery store became suspicious when Jerry V. Lambert, Sr., a justice court judge, cashed money orders at the store made out to the Jackson County Court Clerk and the Jackson County Justice Court. The cashier notified District Attorney Mike Moore, and a subsequent investigation led to the arrest and indictment of Lambert for embezzlement pursuant to Miss.Code Ann. Sec. 97-11-25.
In a lengthy trial, proof was developed that pieced together the manner in which Lambert obtained the cashier's checks which he later converted for his own gain. The sequence would begin with the driver of an automobile, usually from out of state, receiving a speeding citation in Lambert's district. The motorist would then, following directions provided on the citation, telephone the justice court clerk to obtain the amount of the fine owed so that they could simply plead guilty to the charge by paying the fine, and in the process avoid appearing in court. The clerk would direct the person to obtain a cashier's check in the proper amount and mail it to her. Upon receipt of the check, the clerk would attach all copies of the citation to the check, and evenly distribute such among the four (4) justice court judges, including Lambert, in the district.
Upon receipt of his portion of the "mailed in" guilty pleas, with cashier's checks attached, Lambert would proceed to write "not guilty", "dismissed", or some similar notation on the ticket, usually accrediting such to the request of a state trooper, by signifying a particular officer's badge number. After dismissing the charge, leaving, at least on paper, no fine to be paid, Lambert would then take the money orders and endorse them. He then proceeded to cash such at a local liquor or grocery store, effectively converting to his own use state funds.
In developing the above facts at trial the State called thirty seven (37) witnesses composed primarily of motorists receiving citations, highway patrolmen, justice court clerks, grocery and liquor store cashiers, and a handwriting expert. The proof was overwhelming that: all motorists intended to plead guilty; none of the troopers involved requested that the particular citations be dismissed; Lambert cashed the mailed in checks at local liquor and grocery stores. On this basis the jury returned a verdict of guilty from which Lambert appeals.
Appellant was charged, by indictment, with embezzlement on April 12, 1985, and was subsequently arraigned on May 14, 1985. A trial date was set for May 28, 1985, but the matter was reset for hearing on May 29, 1985. During the interim between arraignment and trial, specifically on May 24, 1985, the State complied with Lambert's discovery requests supplying a voluminous number of exhibits, and advising appellant that certain documents had been forwarded to the Mississippi State Crime Laboratory for examination by a handwriting expert.
On May 27, 1985, two (2) days before trial, Lambert filed a motion for a continuance.
The basis for the motion was that, due to the tremendous amount of exhibits provided pursuant to the discovery request, the incompleteness of those exhibits, as such concerned certain samples of Lambert's handwriting, and because of the shortness of time, appellant's counsel had insufficient time to prepare for trial. The record only reflects the motion, itself, that was filed. There is no record of any argument conducted in furtherance of the motion, or that counsel for Lambert took any action to go forward with his request. The motion for a continuance only surfaces in the record again as a part of appellant's motion for a new trial filed after a jury verdict and sentence had been entered, and then, there is still no argument on the point.
At this juncture, we must again emphasize that it is paramount on the party filing a motion to follow up that action by bringing it to the attention of the trial judge and requesting a hearing on it. Sharplin v. State, 357 So.2d 940 (Miss.1978); Dyer v. State, 300 So.2d 788 (Miss.1974). As previously stated, the record is absent of any such action taken by Lambert. Further, trial judges are vested with broad discretionary powers in granting or refusing to grant a continuance. Carter v. State, 473 So.2d 471 (Miss.1985); Greene v. State, 406 So.2d 805 (Miss.1981). This Court will not hold a trial court's granting or denial of a motion for a continuance to be error unless such amounts to an abuse of discretion that acts to prejudice the defendant. Fermo v. State, 370 So.2d 930 (Miss.1979). As the record reflects no action taken by Lambert in furtherance of the motion, and as there was no evidence of any abuse of discretion on the part of the trial judge, the assignment of error is without merit.
Appellant was indicted and convicted of embezzlement pursuant to Miss.Code Ann. Sec. 97-11-25 which provides that:
Embezzlement--officers, trustees and public employees, converting property to own use.
If any state officer or any county officer, or an officer in any district or subdivision of a county, or an officer of any city, town or village, or a notary public, or any other person holding any public office or employment, or any executor, administrator or guardian, or any trustee of an express trust, any master or commissioner or receiver, or any attorney at law or solicitor, or any bank or collecting agent, or other person engaged in like public employment, or any other person undertaking to act for others and intrusted by them with business of any kind, or with money, shall unlawfully convert to his own use any money or other valuable thing which comes to his hands or possession by virtue of his office or employment, or shall not, when lawfully required to turn over such money or deliver such thing, immediately do so according to his legal obligation, he shall, on conviction, be committed to the department of corrections for not more than twenty (20) years, or be fined not more than five thousand dollars ($5,000.00). (emphasis added)
At trial, in making his motion for a directed verdict, Lambert argued that his actions did not come under the above statute because the money orders did not come into his hands or possession "by virtue of his office or employment." Appellant's theory was at trial, and is on appeal, that the money, if it came into his possession at all, came into his possession by "color of office" merely, and not by "virtue of his office," so that any breach of trust occurred only between appellant and the makers of the money orders and not between appellant and the State and County. The basis for this "color of office" argument is the proposition that once the citations were dismissed by Lambert there was no money owed to the State that could legally come into his possession by "virtue of his office," that he could convert to his own use.
In Barlow v. State, 233 So.2d 829 (Miss.1970), the Court was faced with a situation By virtue of his office means that the officer has a legal right to do that which he is doing. If he did not have a right lawfully to receive the property and yet received it as a justice of the peace he was acting under color of office. The embezzlement statute does not provide that a man is guilty when he acts under colore officii. Furthermore, the indictment charged that the money was the property of the county. If it were a bond it could not possibly become the property of the county until the bond...
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