McGilvray v. State, 4 Div. 766.
| Decision Date | 10 May 1934 |
| Docket Number | 4 Div. 766. |
| Citation | 228 Ala. 553,154 So. 601 |
| Parties | McGILVRAY v. STATE. |
| Court | Alabama Supreme Court |
Certiorari to Court of Appeals.
Petition of William H. McGilvray for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in McGilvray v. State, 154 So. 599.
Writ denied.
T. M Patterson, of Clayton, for the motion.
Thos E. Knight, Jr., Atty. Gen., opposed.
The indictment in this case is in one count, and charges that defendant did "embezzle or fraudulently convert to his own use money to about the amount of $40.00." It is not necessary to refer to its other provisions because they do not affect the question which is here material.
Section 4529, Code, requires that an indictment must state the facts constituting the offense in ordinary and concise language.
The charge in an indictment that defendant "embezzled or fraudulently converted to his own use," is one of a fraudulent intent unless a different meaning is otherwise ascribed by law to them, and is descriptive of the offense. Ex parte Cowart, 201 Ala. 525, 78 So. 879; Id., 201 Ala. 55 77 So. 349.
When the indictment is thus framed, it is necessary in order to sustain it that there be proven either an embezzlement or a fraudulent conversion, taken in the ordinary meaning (section 4529, Code), or in such meaning as may be ascribed to them or either of them by statute. The ordinary meaning of "embezzlement or fraudulent conversion" is that a fraudulent intent is included. Ex parte Cowart, supra. But section 3961, Code, makes embezzlement include certain conduct there definitely defined, which does not include a fraudulent intent. So that the charge of embezzlement includes the acts there specified. The indictment in this cause could be sustained by proving those acts, and the court did not err in submitting them to the jury as being included in it.
Referring now to section 3974, Code, we note that it does not expressly declare that the acts enumerated are either embezzlement or fraudulent conversion. Subdivision 3 expressly makes fraud an element, but it and subdivision 2 have no application to this indictment. Subdivision 1 is substantially included in section 3961, and it is there defined as embezzlement. It is evident that subdivision No. 4 was intended to create a crime of the same description. Since the case of Ex parte Cowart, supra, was decided, section 3961, Code, was added. This addition may have been...
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Smith v. State
...has been effectually disposed of by the decisions of this Court. Section 127, supra, makes no such requirement, McGilvray v. State, 228 Ala. 553, 154 So. 601; Garner v. State, 229 Ala. 600, 158 So. 546, neither does section 140, Title 14, Code. Ex parte Cowart, 201 Ala. 525, 78 So. It is al......
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Smith v. State
...was added. This addition may have been inspired by the holding in the Cowart case. Justice Foster expressed this view in McGilvray v. State, 228 Ala. 553, 154 So. 601. In the latter case the indictment charged that the defendant did 'embezzle or fraudulently convert to his own use money to ......
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Indemnity Ins. Co. of North America v. Holiway
...use, there must be a fraudulent intent. This rule has been changed as respects certain public funds. Section 3961, Code; McGilvary v. State, 228 Ala. 553, 154 So. 601; Garner v. State, 229 Ala. 600, 158 So. 546; Ex Cowart, 201 Ala. 525, 78 So. 879; Id., 201 Ala. 55, 77 So. 349. In this resp......
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Garner v. State, 8 Div. 621.
... ... And a general charge of embezzlement may be ... proven by such statutory requirements. McGilvray v ... State, 228 Ala. 553, 154 So. 601 ... We ... cannot agree with petitioner ... ...