Patterson v. State

• Court: Alabama Court of Appeals
• Writing for the Court: PRICE
• Citation: Patterson v. State, 38 Ala.App. 166, 81 So.2d 344 (Ala. App. 1955)
• Decision Date: 22 March 1955
• Docket Number: 3 Div. 971
• Parties: Leon E. PATTERSON v. STATE.

Page 344

81 So.2d 344

38 Ala.App. 166

Leon E. PATTERSON v. STATE.

3 Div. 971.

Court of Appeals of Alabama.

March 22, 1955.

Rehearing Denied April 5, 1955.

John C. Walters, Troy, for appellant.

Si Garrett, Atty. Gen., and Arthur Joe Grant, Asst. Atty. Gen., for the State.

PRICE, Judge.

Omitting the formal parts, the indictment charges: Count 1, that appellant, 'the officer, agent, clerk, employee or servant of George W. Thompson, Senior, George W. Thompson, Junior, John A. Thompson and Edward M. Thompson, a partnership, doing business as Hudson & Thompson, did embezzle or fraudulently convert to his own use, or to the use of another, or fraudulently secrete with intent to convert to his own use, or to the use of another, money and checks, or money or checks, to the amount of about $344.72, and of that value, which said money and checks, or money or checks had come into his possession by virtue of his office, agency or employment.'

Count 2 charges the embezzlement of money to about the amount of $344.72.

Count 3 charges the embezzlement of bank notes, money, checks or bills of exchange of or about the amount of $344.72, and of that value.

Count 4 charges that appellant, 'the officer, agent, clerk, employee or servant of George W. Thompson, Senior, George W. Thompson, Junior, John A. Thompson and Edward M. Thompson, a partnership, doing business as Hudson & Thompson, did embezzle or fraudulently convert to his own use or to the use of another, or fraudulently secrete with intent to convert to his own use, or to the use of another, a check drawn on The First & Merchants National Bank, Troy, Ala., dated 3-13-1953, payable to the order of Hudson & Thompson, or Hutson & Thompson, in the amount of $344.72, signed C. F. Roling, of the value of $344.72 the property of George W. Thompson, Senior, George W. Thompson, Junior, John A. Thompson and Edward M. Thompson, a partnership, doing business as Hudson & Thompson, which said check had come into his possession by virtue of his office, agency or employment.'

Three grounds of demurrer assail count one as violative of Sec. 232 of Tit. 15, Code 1940, in that, from aught appearing a felony is joined with a misdemeanor.

In Noble v. State, 59 Ala. 73, Justice Stone stated the applicable rules in this manner: '* * * When two or more offences are charged in the same count disjunctively, each separate, alternative charge must contain a substantive offence under the law, charged with that degree of certainty which our statute requires, namely, 'in ordinary and concise language, without prolixity or repetition, in such a manner as to enable a person of common understanding to know what is intended, and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment.' (Now Sec. 232, Tit. 15, Code 1940). 'This is probably nothing more nor less than the 'certainty to a common intent,' of which Lord Coke speaks.'

Applying these rules to count one of the indictment, we conclude that the phrase 'to the amount of about $344.72, and of that value' would be construed as referable to each alternative averment so that the legal effect of the language used would be that the defendant embezzled or fraudulently converted 'money and checks to the amount of about $344.72, and of that value' or 'money or checks to the amount of about $344.72, and of that value,' thereby making it certain to a common intent that the property embezzled was of greater value than $25, and the offense a felony under each alternative averment.

The indictment was not rendered demurrable because of failure to specifically allege the ownership of the property. Wall v. State, 2 Ala.App. 157, 56 So. 57. Nor by the addition of 'or servant' to the description of defendant. Sec. 126, Tit. 14, Code 1940, as amended.

The evidence for the State tends to show that defendant was employed as a salesman by the firm of Hudson & Thompson, of Montgomery, Alabama, his territory being the area around Troy, Brundidge, Elba, New Brockton and Enterprise. He took orders and collected accounts from his customers. Defendant was authorized to deposit in his own bank account the cash he collected, but had no authority to deposit anything else. He mailed to his employer a daily collection report, enclosing the checks collected by him and each Friday he came into the office with his weekly report which 'showed his daily collections, according to his own collection report. * * * He would show on a separate collection report the amount of checks enclosed in his collection report, and the balance between the total collection reported and checks he had sent in would be the amount we would charge him with on Friday when he came in for his final check.'

On March 13, 1953, C. F. Roling, who operated a store at Orion, Pike County, Alabama, gave to defendant a check payable to Hudson & Thompson, in the amount of $344.72, signed by C. F. Roling, drawn on the First Farmers and Merchants National Bank, of Troy, Alabama, in payment of his account with said firm. The cancelled check, bearing the endorsements 'Hudson & Thompson,' and 'L. E. Patterson,' was introduced in evidence as State's exhibit 1. Although defendant continued to make daily collection reports, no collection from C. F. Roling was included in such reports, until his report of March 26th, which report showed a collection from Roling of $70.72 on that day. Mr. Roling's account was credited with this amount and it was included, along with other amounts shown in defendant's collection report for that day, in a check for $3,751.59, signed by defendant on March 27, 1953, made payable to Hudson & Thompson. This check was turned down by the bank for insufficiency of funds and was never paid.

Mr. Cecil Frizzle, cashier for Hudson & Thompson, testified that on April 9th, after sending another salesman out with Mr. Patterson to check his accounts, Mr. Roling's account with Hudson & Thompson was credited with the sum of $279.98, which the witness stated was the difference between $344.72, the amount of the check given by Mr. Roling on March 13th, and the $70.72 which defendant's report of March 26th showed as a collection from Mr. Roling. Although subsequent reports were made by defendant on April 13th and 14th, he never reported nor remitted the $279.98 nor any part of it.

After a proper predicate was laid to establish its voluntary character, proof was made of a confession by defendant and the following statement signed by defendant was introduced in evidence:

'April 10, 1953

'Statement of L. E. Patterson age 35, address Troy, Alabama.

'I wish to make the following voluntary statement concerning my handling of my accounts in the territory serviced by me. For the past several months I have been 'Juggling' my customers accounts to cover up a substantial shortage which I have developed in my accounts. I do not know just how the shortage developed but approximately 3 yrs. ago I began to hold out on my cash remittances from week to week and taking the money held out each week to apply on the shortage from the previous week. The below summary is the true statement of my acct.

                 "Check returned as insufficient funds.      3/27.53-3751.59
                                              Daily report 3/30/53                   3564.41
                                                " " 3/31/53                          2396.28
                                                " " 4/1                              1114.72
                                                " " 4/2                               323.61
                                                                             ---------------
                                                                                    11150.61
                                                      Salary Credit                   228.65
                                                                             ---------------
                                                                                    10921.96
                                                      Over on acct.                     2.59
                                                      Carried Fwd.           ---------------
                                                                                    10919.37
                                                  (Signed) L.E. Patterson."
                                              Second Page
                "Brt. Fwd.                                                          10919.37
                                 Salary drawn                                          93.60
                                                                             ---------------
                                                                                    11012.97
                                 Ins. Adv.

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