Medley v. State, 89-KA-0020
| Decision Date | 27 May 1992 |
| Docket Number | No. 89-KA-0020,89-KA-0020 |
| Citation | 600 So.2d 957 |
| Parties | Donald W. MEDLEY v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Kim T. Chaze, Hattiesburg, for appellant.
Michael C. Moore, Atty. Gen., Jackson, for appellee.
Before ROY NOBLE LEE, C.J., and ROBERTSON and BANKS, JJ.
Donald Medley was indicted, tried and convicted in the Circuit Court of Forrest County, Mississippi for embezzlement and was sentenced to ten years in the custody of the Mississippi Department of Corrections. He has appealed to this Court and assigns eight (8) issues for decision.
The Appellant, Donald Medley, was employed as an associate attorney in the law firm of Holmes & Dukes located in Hattiesburg, Mississippi. He had worked for Dukes for about six (6) years when the alleged embezzlement occurred. It centered around a check that was sent to Dukes in payment for legal services provided.
Dukes represented a company out of Birmingham, Alabama, named Engel Realty Corporation. Engel was interested in making an addition to the present Cloverleaf Mall in Hattiesburg. However, in order for that to occur, it required changing certain zoning ordinances, and it hired Dukes to do the legal work. This relationship lasted a while, with Dukes sending Engel a bill every eight months or so. When the zoning was complete, Dukes sent Engel a final bill in the amount of $16,000.00. While talking with a representative of Engel on the phone one day, Dukes mentioned that he had not received their check. The representative from Engel was surprised, since the check had been mailed a while back. Dukes was told that a new check would be issued and sent by Federal Express. The second check arrived the next day. Dukes subsequently deposited it into the firm's general account at Trustmart Bank.
As fate would have it, the original check was delivered to the Dukes law office a few days later. Apparently, a new post office was being opened, and mail was often delayed. When the original was received, Dukes called Engel to ask what they wanted him to do with it. He was instructed to put it in Engel's file, and was told that a stop payment order had been placed on the original check.
Almost a year later, on July 3, 1987, while the office was closed, Medley took the $16,000.00 check, which was made payable to James K. Dukes, endorsed it with "for deposit only" and deposited it into an account bearing his own name. When he was at the bank, the teller inquired about the improper endorsement, but was told that Dukes had given the check to Medley. The teller stated that she had known Medley for over a year because he would come in to make deposits to his account and sometimes would make a deposit to the firm's account and that she trusted him. Somehow the check was paid by Engel's bank, and it came to Engel's attention on Friday, August 7, 1987. Dukes was called that day and was asked what the "deal" was. Upon learning that Medley had deposited it in his own account some 33 or 34 days earlier, Dukes, his son, who also works there, and Mr. Martin, who does some investigatory work for the firm, confronted Medley at the office on Sunday, August 9, 1987.
When asked about the check, Medley, visibly shaken, said that he had wanted to talk to Dukes about that earlier. He said that he had been trying to catch Dukes to tell him the story behind it but never could, since Dukes was always out of the office. Medley claimed that the check was in the office manager's desk, and had been all that time. He stated that another employee had asked him to talk with the office manager, Genie Hamilton, who had worked for Dukes during the last 17 years. The employee was concerned that Genie was drinking too much and that it was affecting her work, as evidenced by the stack of checks in her desk. Medley claimed that he deposited the check in question into his own account so that Genie would not get into trouble with Dukes for not depositing it earlier. Medley further stated that the account into which he deposited the check was a business account which he used for some of his rental property and that account's statement was also mailed to the office.
Dukes told Medley that he expected him to repay Engel Realty and to explain what he had done. Dukes also said that if he didn't, the firm was going to have to repay it. On August 12, Medley wrote a check payable to Engel for the $16,000, with the law firm as the payor. Upon seeing this, Dukes told Medley to cross out the law firm's name and put his own, since it was not the law firm that cashed the check. Reluctantly, Medley complied. Dukes then notified the District Attorney's office and fired Medley.
At the trial, Dukes stated it was office policy that the office manager, Genie Hamilton, make the deposits and balance the accounts. At times, the other clerical employees in the office would make the deposits, as the bank was across the street. Dukes did testify that he would sometimes make deposits, if he was going to the bank, in order to save the clerical employees a trip. Further, Dukes stated that no one had authority to go in the file and to deposit the check, not even himself. He also said that there were many times that Medley could have told him about the deposit within the 33 or 34 days after the check was paid.
Genie Hamilton testified at trial that as far as she knew, the check in question was in the Engel Realty file where it was supposed to be, and not in her desk. Also, she stated that all monetary transactions went through her and that all deposits were made into either the firm's trust account or its general operating account, but never into a personal account.
I. and II.
DID THE APPELLANT HAVE A LEGAL RIGHT TO RECEIVE THE FUNDS IN
Appellant was indicted under Sec. 97-11-25 Miss.Code Ann. (1972), which provides:
"If any State officer or any county officer ... or any other person holding any public office or employment, or any attorney at law ... or any other person undertaking to act or 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 ... be committed to the Department of Corrections for not more than twenty years, or be fined not more than five thousand dollars ($5,000.00)." (Emphasis supplied.)
The principle is well settled in this State that embezzlement is the wrongful conversion of property lawfully possessed by the person charged. Sisk v. State, 294 So.2d 472 (Miss.1974). The question is raised and the appellant argues that he is not guilty of embezzlement for the reason that he did not lawfully possess the check. Therefore, the technicality should allow his acquittal.
In Lambert v. State, 518 So.2d 621 (Miss.1987), a justice court judge was accused of embezzling money orders that were sent in to pay fines for traffic violations. The judge would then dismiss the charge and cash the check, keeping the money. The justice court judge argued that once the charges were dismissed, there was no money owed to the State that could legally come into his possession by "virtue of his office" which he could convert to his own use. This Court was not persuaded by that argument and held that the justice court judge lawfully came into possession of the mailed money by "virtue of his office" and the conviction was sustained.
Embezzlement differs from larceny in that it is the wrongful appropriation or conversion of property where the original taking was lawful or with the consent of the owner. Sisk v. State, 294 So.2d 472 (Miss.1974). Larceny involves trespass and the felonious intent must exist at the time of such taking. Mahfouz v. State, 303 So.2d 461 (Miss.1974); 29A C.J.S., Embezzlement, Sec. 4 (1965).
Appellant was an associate and employee at the Dukes Law Firm. He had access to the files in the office and could lawfully inspect those files in the course of his work on that and on other cases in the office. That right to lawful access of files and other property in the office constructively put appellant into possession of the check in question. Cases such as the one at bar border on embezzlement and on larceny. We hold that under the facts of this case, the appellant was constructively in possession of the check by virtue of his employment and his indictment for embezzlement is valid.
Issues number one and two are rejected.
III. DID THE TRIAL JUDGE ERR IN DECLINING TO RECUSE HIMSELF?
For the answer to this issue, we look to the Mississippi Constitution, the statute and the Canons of Judicial Conduct. Article 6, Sec. 165, of the Mississippi Constitution of 1890 provides:
"No judge of any court shall preside on the trial of any cause, where the parties or either of them, shall be connected with him by affinity of consanguinity, or where he may be interested in the same, except by the consent of the judge and of the parties ..."
There is no constitutional prohibition against this trial judge presiding over the case, since he is neither related to the parties nor has an interest in the case. Miss.Code Ann., Section 9-1-11 provides:
To continue reading
Request your trial
-
Thorson v. State
...jury to resolve, in favor of the accused, doubt over circumstances susceptible of two interpretations." Id. at 757 (citing Medley v. State, 600 So.2d 957 (Miss.1992); Barnes v. State, 532 So.2d 1231 (Miss.1988)). This Court has held that if a defendant makes an admission on a significant el......
-
Nicholson on Behalf of Gollott v. State
...jury with a correct definition of "intent" and trial courts are under no obligation to grant cumulative instructions. Medley v. State, 600 So.2d 957, 962 (Miss.1992). Gollott's D-12 instruction was given to the jury during deliberations. Gollott does not argue that the timing of the submiss......
-
Conley v. State
...jury to resolve, in favor of the accused, doubt over circumstances susceptible of two interpretations ." Id. at 757 (citing Medley v. State, 600 So.2d 957 (Miss.1992); Barnes v. State, 532 So.2d 1231 (Miss.1988)). Where the evidence is purely circumstantial, the trial court must grant a "tw......
-
Samsara Mem'l Trust v. Kelly
...all the people for many years, if such were a disqualification, the judge could never preside on most cases.” Medley v. State, 600 So.2d 957, 961 (Miss.1992). “Unless a judge in a small community was a hermit or a newcomer to the region (neither of which is a good foundation for the positio......