Malone v. State, 4 Div. 568

• Citation: 358 So.2d 490
• Decision Date: 21 March 1978
• Docket Number: 4 Div. 568
• Parties: Curtis MALONE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 490

358 So.2d 490

Curtis MALONE v. STATE.

4 Div. 568.

Court of Criminal Appeals of Alabama.

March 21, 1978.

Rehearing Denied April 18, 1978.

J. Earl Smith, Dothan, for appellant.

William J. Baxley, Atty. Gen., and Milton E. Belcher, Asst. Atty. Gen., for the State.

LEIGH M. CLARK, Retire Circuit Judge.

Appellant-defendant was charged in an indictment with the embezzlement of $800.00, the personal property of Dynamic Industries, Inc., a corporation. He was found guilty by a jury, and the court fixed his punishment at imprisonment for nine years and sentenced him accordingly.

There is no contention on appeal that the evidence was not sufficient to support the verdict of the jury, and our review of the evidence convinces us that the issue as to defendant's guilt under the evidence was properly determinable by a jury. For that reason, we will not attempt a recital of any of the evidence other than that which is pertinent to questions of law discussed herein.

The conduct of defendant constituting the alleged embezzlement occurred in May and June 1976 while he was employed as the manager or "supervisor of operations" of five convenience stores in Dothan, Alabama, which were owned by Dynamic Industries (hereinafter referred to as Dynamic) which was based in Ft. Worth, Texas. A large part of the evidence consisted of business records composed chiefly of daily reports filled in by the manager of each particular store, reflecting in detail the supplies bought, the items sold, expenses and other matters showing a profit or loss during the day. The original of each report was sent to the home office of Dynamic in Ft. Worth. In the process of auditing the records at the home office, substantial fiscal discrepancies to the deficit of Dynamic were noted. It was discovered that large sums of money, including the sum of $600 in one day, had been withdrawn from money of Dynamic, as shown by sixteen daily reports. By the testimony of an official of Dothan Beverage Company, a major discrepancy was shown between some of the amounts actually paid to the beverage company and the amounts reflected by the records of Dynamic.

The evidence shows without dispute that on several occasions defendant made withdrawals from the funds on hand of Dynamic. Defendant's explanation was that the withdrawals were to meet the financial requirements of Dynamic, particularly as to a large purchase of beer from Dothan Beverage Company. In his testimony, defendant denied using for his own benefit any of the money he had withdrawn from the funds of Dynamic.

The testimony thus devolved largely into an intricate accounting process, which was never resolved into a determination by either party as to how much money defendant had withdrawn from the funds of Dynamic or how much he had used to pay obligations of Dynamic, and we have not been favored by a definite, conclusive contention of either party in this respect.

Two chief witnesses for the State were Don Delp and Gene Evans, operations manager and comptroller respectively for Dynamic at Ft. Worth.

During defendant's cross-examination of Mr. Delp, the following occurred:

"Q You have also you and your corporation, Dynamic Industries, Incorporated, has also filed a civil lawsuit against him for money, haven't you?

"MR. SORRELLS: Judge, we object to that.

"THE COURT: Sustain the objection to that."

During defendant's cross-examination of Mr. Evans, the following occurred:

"Q As the auditor of the corporation, you know that your company has filed a civil lawsuit against

"MR. SORRELLS: Judge, we object to that.

"THE COURT: Sustain the objection to that. Stay away from that, Mr. Hornsby."

We are pressed by appellant with the contention that the trial court should have allowed defendant, on cross-examination of these two important witnesses for the State, to show that Dynamic filed a civil suit against defendant to recover the money alleged to have been embezzled by him and that the trial court was in error in sustaining the State's objections to the questions above quoted. Appellee counters, arguing that appellant "is somewhat thorough in his presentation of the 'general rule' . . . relative to the cross-examination of the witness regarding a civil suit already filed in the pending cause. However, the Appellant is not completely thorough because he fails to state that this general rule, as many other general rules, is riddled with exceptions." Thereafter appellee relies upon the "discretionary factor" of the trial court as an "exception to the general rule."

We agree with appellee that considerable discretion is vested in the trial court as to the extent it should go in permitting cross-examination of a witness "called against him, so as to assure to the party his right to a " thorough and sifting" cross-examination as provided by Code of Alabama 1940, Recomp. 1958, Tit. 7, § 443. Nevertheless, we believe there is little, if any, discretion as to whether it should permit on cross-examination questions directed to the witness for the purpose of showing that the witness has filed suit against the party about the same matter as that being litigated in the case in which the witness is to testify. In Ferguson v. State, 40 Ala.App. 389, 114 So.2d 302 (1959), it was held:

"A party to an action or proceeding, civil or criminal, may elicit from an opposing witness on cross-examination any fact tending to show bias against him or that the witness is interested in the outcome of the litigation. Sowell v. State, 30 Ala.App. 18, 199 So. 900; Adams v. State, 30 Ala.App. 188, 2 So.2d 468; Louisville & N. R. Co. v. Courson, 234 Ala. 273, 174 So. 474.

"Under this rule a witness for the prosecution in a criminal case may be compelled to disclose on cross-examination that he has instituted a civil action for damages against the accused based on the acts involved in the criminal case. Cabel v. State, 18 Ala.App. 557, 93 So. 260; George v. State, 27 Ala.App. 196, 169 So. 325; McCain v. City of Montgomery, 38 Ala.App. 568, 92 So.2d 678; Morrison v. State, 267 Ala. 1, 100 So.2d 744. See also 98 C.J.S. Witnesses § 546, p. 488; Wharton's Criminal Evidence, 12th Ed., Sec. 909, p. 326."

To the cases cited is to be added Lanier v. State, 43 Ala.App. 447, 192 So.2d 256 (1966).

Appellee also argues that as to each of the two witnesses in instant case, it was not the "witness himself" who initiated "a civil action for damages against the accused" and, for that reason, the rule advanced by appellant, which has been followed without exception in Alabama, is without application in this case. We are not favored with any authority to support such contention. However a good rule may...