Peters v. State
| Decision Date | 12 January 1915 |
| Docket Number | 619 |
| Citation | 12 Ala.App. 133,67 So. 723 |
| Parties | PETERS v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Law and Equity Court, Walker County; T.L. Sowell, Judge.
Isaac Peters was convicted of embezzlement, and he appeals. Reversed and remanded.
Finch & Pennington, of Jasper, and W.L. Acuff, of Columbiana, for appellant.
R.C. Brickell, Atty. Gen., and W.L. Martin Asst. Atty. Gen., for the State.
The indictment charges:
"That before the finding of the indictment Isaac Peters whose name is to the grand jury otherwise unknown, a bailee or agent, or trustee of the New Bethel Baptist Sunday school, embezzled or fraudulently converted to his own use money to the amount of about fifteen dollars, which came into his possession as such bailee, or agent, or trustee of the New Bethel Baptist, Sunday school, against the peace and dignity," etc.
It was demurred to upon several grounds, one of which is to the effect that the indictment shows on its face that the New Bethel Baptist Sunday school, the alleged principal, as whose alleged agent, or trustee, or bailee, defendant is alleged to have come into the possession of the money alleged to have been embezzled, is neither a person, a partnership, nor a corporation, and consequently is not a legal entity, and is therefore incapable in law of having an agent, trustee, or bailee, or of owning property.
An unincorporated or voluntary association of persons, though not a legal entity, and not capable of suing by or of being sued in their common name, may yet as individuals jointly own personal property and jointly have an agent, bailee, or trustee with respect to that common property (Conklin v. Davis, 63 Conn. 377, 28 A. 537; Allison v. Little, 85 Ala. 512, 5 So. 221; Stewart v. White, 128 Ala. 202, 30 So. 526, 55 L.R.A. 211; 34 Cyc. 1112 et seq.; 24 Am. & Eng.Ency.Law [2d Ed.] 323 et seq.; Burke v. Roper, 79 Ala. 138); and in an indictment for the larceny or embezzlement of such property it is entirely sufficient to lay the ownership of it in such association by giving its common name, without setting out the individuals composing or constituting it (Code, § 7147). By reason of this statute, the cases of Burrow v. State, 147 Ala. 114, 41 So. 987, and Emmonds v. State, 87 Ala. 12, 6 So. 54, clearly have no application here, as they lay down the rule for alleging ownership in a partnership or corporation.
Likewise it was sufficient to allege, as the indictment here did, that the person charged with embezzling the property came into possession of it as the agent, bailee, or trustee of such association, giving its common name without setting out the individuals composing or constituting it. 25 Cyc. 96. This latter doctrine, if otherwise it did not obtain, is a necessary corollary to the doctrine established by the section (7147) of the Code cited, allowing the ownership to be alleged in the way as before mentioned. The statute is remedial, and is to be liberally construed, so as to effectuate the apparent legislative intent, which was to relieve the necessity of incumbering the pleadings with long averments of individual names in cases where, as here, the property concerned belonged to a voluntary association of numerous persons, having a common name, but which was neither a partnership (Burke v. Roper, 79 Ala. 138), nor a corporation (Preist v. State, 5 Ala.App. 171, 59 So. 318).
There is likewise no merit in that ground of the demurrer which raises the point that the indictment failed to allege that the money embezzled belonged to or was owned by said "New Bethel Baptist Sunday school." Whether they or some other person or persons owned it is immaterial to the charge, provided the defendant, as was alleged, came into possession of it as their agent, bailee, or trustee and while so in possession embezzled it or fraudulently converted it to his own use. Barr v. State, 10 Ala.App. 111, 65 So. 197; Reeves v. State, 95 Ala. 31, 11 So. 158; Willis v. State, 134 Ala. 429, 449, 33 So. 226; Washington v. State, 72 Ala. 272.
The description of the money alleged to have been embezzled was sufficient. Code, § 6843; Walker v. State, 117 Ala. 42, 23 So. 149; Huffman's Case, 89 Ala. 33, 8 So. 28.
It was not necessary for the indictment to allege in what county the offense was committed. Code, § 7140.
The indictment also met every ground of attack raised by the demurrers as to the question of the capacity in which the defendant came into the possession of the money alleged to have been embezzled. Wall v. State, 2 Ala.App. 157, 56 So. 57; Gleason v. State, 6 Ala.App. 49, 60 So. 518; Willis v. State, 134 Ala. 429, 449, 33 So. 226.
The demurrer to the indictment on the ground that it fails to show but what defendant was a member of said "New Bethel Baptist Sunday school," and consequently but what he as such was a joint owner of the money alleged to have been embezzled, and the insistence of the defendant that he was entitled to the affirmative charge because the evidence showed without dispute that he in fact was a member and consequently did as such have a joint interest in the property, are, we think, equally without merit. The defendant's interest in the money by virtue of his membership in the Sunday school was not such as would give him the right, without the consent of the Sunday school, to withdraw and appropriate even that interest to his personal and private uses, although he may have from his own purse, as contended, contributed from time to time to the fund. The title to the property rests in the several members of the Sunday school, not for their personal and individual use and benefit, but in trust--as the result of an implied, if not express, agreement between such members--for the promotion of the altruistic or religious ends and objects for which they had formed themselves into and associated themselves together as a Sunday school and upon which they as a Sunday school might determine; and, while it is no doubt true that any member of the Sunday school might, by virtue of such joint ownership of the funds and in order to conserve and protect them for the benefit of the Sunday school, take possession of and hold the same in the absence of any action by the Sunday school as a body providing for the keeping of the funds, yet even such right of a member even so to hold the funds is superseded whenever the Sunday school as a body chooses to exercise its authority over the possession of the funds and to resolve and direct that they be kept by a particular person. Whenever the members of the Sunday school in their collective capacity as such see fit to say how and by whom the funds shall be kept, the right of any individual member to the possession of such funds as a joint owner is certainly suspended, he having fully exercised his individual authority with respect to them by his participation in the deliberations of the Sunday school or by his opportunity to do so, and thereafter he cannot, as against any person so chosen by the majority of the Sunday school to keep the funds, assert any individual rights to the possession of them which he might, as a joint owner, for the benefit of the Sunday school have asserted against a stranger at any time before the Sunday school acted. Consequently, although a person be a member of the Sunday school and by reason thereof hold jointly with the other members the legal title to its funds, yet when he receives and accepts the exclusive possession of the funds, by authority of the Sunday school as a body, to hold for them and to disburse as they may direct, he receives and accepts and holds such exclusive possession of such funds, not in any individual right as a joint owner, but as the "agent, bailee, or trustee" of the Sunday school, and may, we think, under the statute, be guilty of embezzlement with respect to them if he fraudulently converts...
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