Shirey v. State

• Decision Date: 11 January 1921
• Docket Number: 6 Div. 625
• Citation: 18 Ala.App. 109,90 So. 72
• Parties: SHIREY v. STATE.
• Court: Alabama Court of Appeals

90 So. 72

18 Ala.App. 109

SHIREY v. STATE.

6 Div. 625

Court of Appeals of Alabama

Jan. 11, 1921

Rehearing Denied April 5, 1921

Appeal from Circuit Court, Jefferson County; F. Lloyd Tate, Judge.

W.C Shirey was convicted of embezzlement and larceny, and he appeals. Affirmed.

Certiorari denied 90 So. 75.

Roderick Beddow and Ben F. Ray, both of Birmingham, for appellant.

J.Q Smith, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

SAMFORD J.

The indictment contained 19 counts, charging defendant in various ways with grand larceny and embezzlement. The facts as disclosed by the record, so far as they are necessary to a decision of this case, are as follows: Alton P. Stephens was appointed, by the Secretary of State of the state of Alabama as one of his assistants, to collect certain license fees in Jefferson and Shelby counties, under authority of an act of the Legislature approved April 22, 1911 (Acts 1911, p. 634), which act also fixed the fees to be paid by licensed chauffeurs operating automobiles, and also provided how application for licenses were to be made.

It was required as a part of these applications for these licenses that they should be sworn to before an officer authorized to administer oaths. The defendant was such an officer, and as such was entitled under the law to a fee of 50 cents for each applicant, whose affidavit he should take. The defendant having an office in the courthouse in Jefferson county, Stephens appointed him as his (Stephens') agent, to take applications for these licenses and to collect the proper fees, which, when collected, were to be turned over to Stephens, together with the applications, to be in turn forwarded to the Secretary of State. The defendant, acting under this arrangement, collected from numerous persons license fees aggregating several hundred dollars, which he failed to turn over to Stephens or to the Secretary of State, but embezzled or fraudulently converted to his own use. Under the evidence there is no doubt but that the defendant is guilty as charged in the indictment, either of larceny or of embezzlement.

The defendant insists that he is entitled to a reversal, first, because there was not sufficient evidence to sustain the larceny counts, and that the court erred in refusing to give at his request in writing the general affirmative charge as to these counts. In the case of Weldon v. State, 17 Ala.App. 68, 81 So. 846, in a case where the defendant was convicted on a charge of larceny, this court reversed the judgment, because the evidence did not sustain the charge of which the defendant was convicted, and the verdict, being specifically referable to the larceny count, could not be referred to the counts charging embezzlement. In the instant case, the verdict is general, and referable to any good count in the indictment. Handy v. State, 121 Ala. 13, 25 So. 1023.

The evidence in this case shows, without conflict, that only one act was being charged in the various counts in the indictments, to wit, the fraudulent misappropriation of certain funds. That this misappropriation constituted a crime, either larceny or embezzlement, is beyond question, depending upon whether the taking constituted a trespass or whether it was the fraudulent conversion of funds coming into defendant's possession as an agent. Being kindred offenses and subject to the same punishment, the defendant might have been charged with both in the same count of the indictment, in the alternative (Code 1907, § 7151), or, as was done in this case, in separate counts. Orr v. State, 107 Ala. 35, 18 So. 142. The object of such pleading being, not to convict the defendant of distinct offenses, but of the single offense established by the evidence. Orr v. State, supra. The theory of the law, in permitting this character of pleading in such cases, is to meet every probable contingency of the evidence. Under such a state of facts the state cannot be compelled to elect under which particular count it will conduct its prosecution. Neither can the jury any more be forced by instructions of the court to elect under which count they will convict. Jackson v. State, 74 Ala. 26; Mayo v. State, 30 Ala. 32; Howard v. State, 108 Ala. 571, 18 So. 813; Butler v. State, 91 Ala. 87, 9 So. 191.

Where there is the slightest evidence from which the jury might draw a conclusion as to guilt under either count the affirmative charge should not be given, and where the facts in evidence as in this case conclusively and admittedly prove the defendant to be guilty of the embezzlement of the funds laid in the indictment and as charged in some of the counts in the indictment, which facts necessarily exclude proof of trespass, a refusal of the court to give the affirmative charge as to the larceny counts, while technically erroneous, is without any possible prejudice to the defendant, it not being probable that the jury would have rendered a verdict other than they did, had the charge been given as requested. Especially is this true, as the court correctly, at the request of the state, instructed the jury that:

"If they believed the evidence beyond a reasonable doubt, they must find the defendant guilty."

What possible prejudice could there be? Admittedly guilty of embezzlement. A crime of the same family as larceny. The punishment the same. The proceedings in this case a bar to any subsequent prosecution involving the same transaction. It would result in a lamentable maladministration of justice if the principle should obtain that a judgment should be reversed on account of the uncertainty of the trial judge as to the highly technical distinctions between actual and constructive possession, distinguishing the name of the crime for which the defendant was being prosecuted, when the defendant was admittedly...